Terms & Conditions

Tufftruk Terms & Conditions.

Tufftruk Limited – Terms of Sale v 6.6.19

Interpretation
- Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.5.

Contract: the contract between Tufftruk and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from Tufftruk.

Distribution Agreement: any distribution, framework or similar agreement between the Customer and Tufftruk from time to time.

Force Majeure Event: has the meaning given in clause 10.

Goods: the goods (or any part of them) set out in the Purchase Order.

Purchase Order: the Customer’s purchase order for the Goods, as set out in the Customer’s purchase order form, but only if accepted by Tufftruk under clause 2.3.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed under a Distribution Agreement or if none then in writing by the Customer and Tufftruk.

Tufftruk: Tufftruk Limited (registered in England and Wales with company number 06887109).

Warranty Period: the period of 12 months from the date of Tufftruk invoice.

Interpretation
- A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- 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.
- A reference to writing or written includes faxes and emails.

Basis of contract
- These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- The Purchase Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Purchase Order and any applicable Specification are complete and accurate.
- The Purchase Order shall only be deemed to be accepted when Tufftruk issues a written acceptance of the Purchase Order, at which point the Contract shall come into existence.
- The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions and any Distribution Agreement.
- Any samples, drawings or advertising produced by Tufftruk and any illustrations contained in Tufftruk’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
- A quotation for the Goods given by Tufftruk shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
Goods
- The Goods are described in Tufftruk’s catalogue as modified by any applicable Specification and sample provided for this purpose.
- Tufftruk reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
Delivery
- Tufftruk shall ensure that:
  - each delivery of the Goods is accompanied by a delivery note that shows the date of the Purchase Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
  - if Tufftruk requires the Customer to return any packaging materials to Tufftruk, that fact is clearly stated on the delivery note. Returns of packaging materials shall be at Customer’s expense.
- The Customer shall collect the Goods from Tufftruk’s premises or such other location as may be agreed by Tufftruk prior to delivery (Delivery Location) within five Business Days of Tufftruk notifying the Customer that the Goods are ready.
- Delivery is completed on Tufftruk notifying the Customer that the Goods are available for collection at the Delivery Location either by the Customer or by a carrier appointed for the Customer and at their risk and cost.
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Also Tufftruk shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Tufftruk with any instructions that are relevant to the supply of the Goods.
- If Tufftruk fails to make the Goods available for collection, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Tufftruk shall have no liability for any failure to make the Goods available to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Tufftruk with any instructions that are relevant to the supply of the Goods.
- If the Customer fails to collect the Goods within five Business Days of Tufftruk notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Tufftruk’s failure to comply with its obligations under the Contract:
  - delivery of the Goods shall be deemed to have been completed at 9:00 am on the sixth Business Day after the day on which Tufftruk notified the Customer that the Goods were ready; and
  - Tufftruk may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If 15 days after the day on which Tufftruk notified the Customer that the Goods were ready for delivery the Customer has not collected them, Tufftruk may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
- Tufftruk may deliver the Goods (where they are parts only) by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Quality
- Subject to the other provisions of a Contract, Tufftruk hereby gives the Customer warranty (Warranty) that all Goods and Parts sold by Tufftruk to the Customer pursuant to this Agreement will:
  - conform in all material respects to the Specification; and
  - be free from material defects in design, material and workmanship;
  - will be new and manufactured with good quality materials and workmanship

Such Warranty liability shall only extend to supply of Parts for repair or, at Tufftruk’s discretion, replacement in that respect and all claims under the Warranty must be received in writing with all reasonable details by Tufftruk before expiration of 30 days after the end of the Warranty Period and then shall only be valid to the extent stated in this Agreement.

All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in the Contract are excluded to the fullest extent permitted by law.
These Conditions shall apply to any repaired or replacement Goods supplied by Tufftruk but not to as to extend the Warranty Period.

Title and risk
- The risk in the Goods shall pass to the Customer on invoice.
- Title to the Goods shall not pass to the Customer until the earlier of:
  - Tufftruk receives payment in full (in cash or cleared funds) for the Goods and any other goods that Tufftruk has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
  - the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.
- Until title to the Goods has passed to the Customer, the Customer shall:
  - store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Tufftruk’s property;
  - not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  - maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
  - notify Tufftruk immediately if it becomes subject to any of the events listed in clause 1; and
  - give Tufftruk such information relating to the Goods as Tufftruk may require from time to time.
- Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Tufftruk receives payment for the Goods. However, if the Customer resells the Goods before that time:
  - it does so as principal and not as Tufftruk’s agent; and
  - title to the Goods shall pass from Tufftruk to the Customer immediately before the time at which resale by the Customer occurs.
- If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 1, then, without limiting any other right or remedy Tufftruk may have:
  - the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
  - Tufftruk may at any time:
    - require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another Good; and
    - if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
  - Tufftruk shall be entitled to recover the price of the Goods notwithstanding that title may not have transferred.

Price and payment
- The price of the Goods shall be the price set out in the Tufftruk Order Acceptance, or, if no price is quoted, the price set out in Tufftruk’s published price list in force as at the date of delivery or otherwise agreed in a Distribution Agreement.
- Tufftruk may, by giving notice to the Customer before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
  - any request by the Customer to change the delivery date(s), quantities or types of Goods Purchase Ordered, or the Specification; or
  - any delay caused by any instructions of the Customer or failure of the Customer to give Tufftruk adequate or accurate information or instructions.
- Tufftruk may, by giving notice to the Customer at any time up to 20 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
  - any factor beyond Tufftruk’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  - any request by the Customer to change the delivery date(s), quantities or types of Goods Purchase Ordered, or the Specification; or
  - any delay caused by any instructions of the Customer or failure of the Customer to give Tufftruk adequate or accurate information or instructions.
- The price of the Goods:
  - excludes amounts in respect of value added tax and sales tax (VAT), which the Customer shall additionally be liable to pay to Tufftruk at the prevailing rate, subject to the receipt of a valid VAT invoice; and
  - excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
- Tufftruk may invoice the Customer for the Goods on or at any time after they are ready for collection.
- The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Tufftruk in GB pounds or such other legal currency that Tufftruk shall stipulate. Time for payment is of the essence.
- If the Customer fails to make any payment due to Tufftruk under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8.0% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
Termination
- Without limiting its other rights or remedies, Tufftruk may terminate this Contract with immediate effect by giving written notice to the Customer if:
  - the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 days of that party being notified in writing to do so;
  - the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by Purchase Order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
  - the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
  - the Customer’s financial position deteriorates to such an extent that in Tufftruk’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without limiting its other rights or remedies, Tufftruk may suspend provision of the Goods under the Contract or any other contract between the Customer and Tufftruk if the Customer becomes subject to any of the events listed in clause (a) to clause (d), or Tufftruk reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
- Without limiting its other rights or remedies, Tufftruk 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.
- On termination of the Contract for any reason the Customer shall immediately pay to Tufftruk all of Tufftruk’s outstanding unpaid invoices and interest.
- 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 that existed at or before the date of termination.
- 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.
Limitation of liability
- Nothing in the Contract shall limit or exclude Tufftruk’s liability for any matter in respect of which it would be unlawful for Tufftruk to exclude or restrict liability.
- Subject to clause 1:
  - Neither party shall under any circumstances whatever be liable to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
    - any indirect, special or consequential loss or damage; or
    - loss of data or other equipment or property; or
    - economic loss or damage; or
    - incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
    - any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill,

even if a party is advised in advance of the possibility of any such losses or damages.

Tufftruk shall not be liable for any losses arising from Customer’s or their customers’ or any third parties’ subsequent use or misuse of the Goods including as a result of the following:
- fair wear and tear;
- wilful damage;
- Customer’s negligence, or that of its agents or employees, or any failure to follow Tufftruk’s written instructions as to use or repair of the Goods;
- abnormal working conditions beyond those referred to in the Specification and/or in any written operating manual or instructions provided by Tufftruk;
- to the extent the liability arises as a result of the action or omission of Customer, its servants, agents, sub-contractors/sub-customers or other third parties in violation of the Specification and/or any written operating manual or instructions provided by Tufftruk; and
- any alteration or repair of the Goods by any manufacturing process or otherwise not authorized or in compliance with the Specification;

or related to any Honda engine and Honda supplied ancillaries.

Tufftruk’s total liability to Customer in respect of all other loss or damage arising under or in connection its Warranty under the Contract (including under any contract for the supply of Goods), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the higher of:
- the cost of the whole unit replacement (being the price for supply under the Contract) or, if appropriate, that of the Parts to repair the Good that has given rise to the liability; and
- the amount recovered by Tufftruk under its relevant policy of insurance in this respect.
Tufftruk is not liable for:
- non-delivery, unless Customer notifies Tufftruk of the claim within 3 Business Days of the date of first arrival of the Goods at Customer’s warehousing or, if earlier then that, of their stocking agents or other earlier receipt; or
- damage to or loss of all or part of the Goods in transit.
Customer acknowledges and agrees that the Good prices reflect the limitations of liability contained in the Contract.
No warranty on supply of Goods is provided by Tufftruk as to Honda supplied engine(s) and component parts. It is acknowledged between the parties that Honda is solely responsible for any warranty on its engine(s) and component parts. Nevertheless, Customer will use good faith, reasonable commercial efforts to facilitate with Honda any customer claim(s) for repair, service and warranty claims relating to the Honda engine(s) and component parts, and Tufftruk shall take reasonable steps to assist Customer as reasonably necessary with a view to securing Honda’s agreement to accept responsibility for such claims.

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 events, circumstances or causes beyond its reasonable control (a Force Majeure Event). If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract by giving 4 weeks written notice to the affected party.

General
- Assignment and other dealings.
  - Tufftruk may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
  - The Customer may not assign, transfer, mortgage, charge, subcontract, 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 Tufftruk.
- Entire agreement.
  - This Contract and the documents referred to in it constitute 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.
  - 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 the Contract or any Distribution Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
- No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- 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.
- 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.
- - Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
    - delivered by hand or by pre-paid first-class post or other next working day delivery service (if overseas then by registered, recorded or certified pre-paid post or nationally recognised courier) at its registered office (if a company) or its principal place of business (in any other case); or
    - sent by fax to its main fax number; or
    - sent by email to the most recent email address notified or used by the other party;

in each case marked FAO R Blackhurst for Tufftruk and The Chairman for Distributor.

Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address or delivery is refused when tendered;
- 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 or at the time recorded by the delivery service but if overseas then on delivery or refusal at destination and sent by registered, recorded or certified pre-paid post or nationally recognised courier.
- if sent by fax, at 9.00 am on the next Business Day after transmission.
- if sent by email at 9.00 am on the next Business Day after transmission but if the recipient does not confirm receipt or does not reply to the email within 2 Business Days then a hard copy must be served by another method instead.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
Governing law. The 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.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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Terms & Conditions

Tufftruk Terms & Conditions.

Interpretation

Basis of contract

Goods

Delivery

Quality

Title and risk

Price and payment

Termination

Limitation of liability

Force majeure

General