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TERMS AND CONDITIONS OF SALE FOR VEHICLES
1.1 Definitions:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Buyer” means the person named on the Order Form for whom Ginetta has agreed to provide Goods in accordance with these Conditions.
“Conditions” means the terms and conditions set out in this document as amended from time to time.
“Contract” means the contract between Ginetta and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
“Deposit” means the deposit payable by the Buyer set out in Part A of the Retail Customer Order Form (including any payments listed in the payment schedule up to but not including the final scheduled payment).
“Force Majeure Event” means an event or circumstance beyond a party’s reasonable control.
“Ginetta” means Ginetta Cars Limited (registered in England and Wales with company number 02744760) or their duly appointed agent.
“Goods” means the Motor Vehicle(s) ordered by the Buyer as detailed in Part A of the Order Form.
“Order” means the Buyer’s order for the Goods, as set out in Ginetta’s Retail Customer Order Form.
“Specification” means any specification for the Goods, including any related plans and drawings that may be agreed in writing by the Buyer and Ginetta.
1.2 Interpretation:
1.2.1 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.
1.2.2 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.
1.2.3 A reference to writing or written includes emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Buyer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when both the Buyer and a duly appointed representative of Ginetta sign the completed Retail Customer Order Form Ginetta, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by Ginetta and any descriptions or illustrations contained in Ginetta’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.
3. GOODS
3.1 The Goods are as described in Ginetta’s catalogue and/or products list, and as may be modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with any Specification supplied by the Buyer, the Buyer shall indemnify Ginetta 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 and other professional
costs and expenses) suffered or incurred by Ginetta in connection with any claim made against Ginetta for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Ginetta’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Ginetta reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.4 If the Goods to be supplied by Ginetta are new, the following provisions shall have effect:
3.4.1 If after the date of this Order and before delivery of the Goods to the Buyer, Ginetta’s recommended price for any of the Goods is altered, Ginetta shall give notice of any such alteration to the Buyer, and in the event of the recommended price being increased, the amount of such increase shall be payable by the Buyer unless within 7 days after receipt of such notice the Buyer gives notice to Ginetta that he declines to pay such amount, in which case Ginetta shall have the option, by notice in writing to the Buyer, to cancel the Contract;
3.4.2 In the event of Ginetta ceasing to make Goods of that type, Ginetta may (whether the estimated delivery date has arrived or not), by notice in writing to the Buyer, cancel the contract;
3.4.3 If Ginetta cancels the contract under any of the foregoing provisions, the Deposit shall be returned to the Buyer and Ginetta shall be under no further liability.
4. PART EXCHANGE
4.1 Where Ginetta agrees to allow part of the price of the Goods to be discharged by the Buyer delivering a used motor vehicle to Ginetta, such allowance is hereby agreed to be given and received, and such used vehicle is hereby agreed to be delivered and accepted as part of the sale and purchase of the Goods and upon the following further conditions:
4.1.1 That the used vehicle is the absolute property of the Buyer and is free from all encumbrances;
4.1.2 That if Ginetta has examined the used vehicle prior to its confirmation and acceptance of the Order, the used vehicle be delivered to it in the same condition as at the date of such examination (fair wear and tear excepted);
4.1.3 That the used vehicle shall be delivered to Ginetta on or before delivery of the Goods to be supplied by him hereunder, and the property in the used vehicle shall thereupon pass to Ginetta absolutely.
4.1.4 In the event of the non‐fulfilment of any of the foregoing conditions, Ginetta shall be discharged from any obligation to accept the used vehicle or to make any allowance in respect thereof and the Buyer shall discharge in cash the full price of the Goods to be supplied by Ginetta.
4.2 If Ginetta has not examined the used vehicle prior to its confirmation and acceptance of the Order and, on delivery of the used vehicle to Ginetta, Ginetta in its sole discretion deems the condition and or description of the used vehicle to differ materially from that provided by the Seller, Ginetta shall be discharged from any obligation to accept the said used vehicle or to make any allowance in respect thereof and the Buyer shall discharge in cash the full price of the Goods to be supplied by Ginetta.
5. DELIVERY AND TITLE
5.1 All deliveries of Goods shall be made EXW (2010 Incoterms).
5.2 The Buyer shall arrange for the collection of the Goods from Ginetta’s premises or such other location as may be advised by Ginetta prior to delivery (Delivery Location) on such date as Ginetta shall notify to the Buyer that the Goods are ready or such date that Ginetta dispatches the Goods from its premises (Delivery Date).
5.3 Delivery is completed upon placement of the Goods at the Delivery Location for collection by the Buyer. Ginetta will endeavour to secure delivery of the Goods by the estimated Delivery Date (if any), but does not guarantee the time of Delivery and shall not be liable for any damages or claims of any kind in respect of delay in Delivery. Time is not of the essence in relation to the Delivery Date.
5.4 The Buyer (or the Buyer’s appointed Agent) agrees to fully inspect the Goods at point of Delivery and agrees that removal of the Goods from the Delivery Location shall constitutes acceptance of the Goods by the Buyer as having been inspected, being in conformity with the Contract between the parties and as fit for purpose and being of merchantable quality.
5.5 The only variation to Clause 5.4 shall be in the event of manifest defect in any component within the assembly of the Goods, in which case the Buyer shall not be entitled to reject the Goods or to repudiate the Contract but instead the defect(s) shall be treated as a matter outside the control of the Parties and entitling Ginetta to rectify by substitution any part or to correct any deficient assembly and whereby any substituted part(s) and the Goods as rectified shall be treated as though supplied in that condition at Delivery.
5.6 Ginetta shall not be liable for any delay in Delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide Ginetta with adequate instructions or any other instructions that are relevant to the supply of the Goods.
5.7 If the Buyer fails to collect or take delivery of and pay for the Goods within 21 days of notification that the Goods have been completed for Delivery, Ginetta shall be at liberty to treat the Contract as repudiated by the Buyer and thereupon the Deposit shall be forfeited without prejudice to Ginetta’s right to recover from the Buyer by way of damages any loss or expense which Ginetta may suffer by reason of the Buyer’s default. Ginetta shall be entitled to make a storage charge of not less than £5 per day in respect of any 2 Goods of the customer remaining on its premises for whatever reason after the Delivery Date (including without limitation as the result of failure by the customer to make payment to Ginetta hereunder).
5.8 Any shortages must be notified within 30 days of the Buyer’s receipt of Goods, failing which Ginetta shall be under no obligation to provide replacement parts.
5.9 Title to the Goods shall not pass to the Buyer until: (a) Ginetta receives payment in full (in cash or cleared funds) for the Goods; or (b) the Goods are delivered, whichever is later.
6. QUALITY AND RETURNS
6.1 Ginetta warrants that on delivery the Goods shall:
6.1.1 conform in all material respects with their description and any Specification;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to clause 6.3, if:
6.2.1 the Buyer gives notice in writing to Ginetta within a reasonable time of discovery and in any event within 1 month of the Delivery Date that some or all of the Goods
do not comply with the warranty set out in clause 6.1;
6.2.2 Ginetta is given a reasonable opportunity of examining such Goods; and
6.2.3 the Buyer (if asked to do so by Ginetta) returns such Goods to Ginetta’s place of business at the Buyer’s cost, Ginetta shall, at its option, arrange to repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 Ginetta shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 6.2;
6.3.2 the defect arises because the Buyer failed to follow Ginetta’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
6.3.3 the defect arises as a result of Ginetta following any Specification supplied by the Buyer;
6.3.4 the Buyer alters or repairs such Goods without the written consent of Ginetta;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
6.3.6 the Goods have been used (other than in an initial shakedown test), including use for racing or competing of any kind or type, whether on public or private facilities and/or in any non‐competitive event on a race track or public or private facility.
6.4 Except as provided in this clause 6, Ginetta shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.5 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.
6.6 These Conditions shall apply to any repaired or replacement Goods supplied by Ginetta.
6.7 Where the Buyer is dealing as a consumer, nothing in these Terms and Conditions shall purport to limit or exclude its statutory rights.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price agreed by the parties and set out in the Order.
7.2 The price of the Goods excludes amounts in respect of value added tax (VAT), which (if applicable) the Buyer shall additionally be liable to pay to Ginetta at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.3 Ginetta may invoice the Buyer for the Goods on or at any time on or after the date of the Order.
7.4 The Buyer shall pay the invoice in full and in cleared funds within 10 Business Days of the date of the invoice or prior to the Delivery Date if earlier. Payment shall be made to the bank account nominated in writing by Ginetta. Time for payment is of the essence. If the Buyer disputes any element of the invoice, it shall notify Ginetta of the amount in dispute prior to the due date for payment and shall pay the undisputed portion of the invoice on or prior to the due date.
7.5 If the Buyer fails to make any payment due to Ginetta under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank’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 Buyer shall pay the interest together with the overdue amount.
7.6 Save for any amounts in dispute and notified to Ginetta in accordance with clause 8.4, the Buyer 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). Ginetta may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Ginetta to the Buyer.
8. TERMINATION
8.1 The Buyer has no general right of cancellation. Any Deposit paid against an order will be forfeited to Ginetta upon cancellation by the Buyer unless otherwise agreed in writing by Ginetta.
8.2 Without limiting its other rights or remedies, Ginetta may terminate this Contract with immediate effect by giving written notice to the Buyer if:
8.2.1 the Buyer 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;
8.2.2 the Buyer 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 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.2.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.2.4 the Buyer’s financial position deteriorates to such an extent that in Ginetta’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 Without limiting its other rights or remedies, Ginetta may suspend provision of the Goods under the Contract or any other contract between the Buyer and Ginetta if the Buyer becomes subject to any of the events listed in clause 8.2.1 to clause 8.2.4, or Ginetta reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
8.4 Without limiting its other rights or remedies, Ginetta may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
8.5 On termination of the Contract for any reason the Buyer shall immediately pay to Ginetta all of Ginetta’s outstanding unpaid invoices and interest.
8.6 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.
8.7 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.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude Ginetta’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for Ginetta to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 Ginetta shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 Ginetta’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods under an Order.
10. FORCE MAJEURE
10.1 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 8 weeks, the party not affected may terminate this Contract by giving 4 weeks written notice to the affected party.
11. GENERAL
11.1 Assignment and other dealings.
11.1.1 Ginetta 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.
11.1.2 The Buyer 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 Ginetta.
11.2 Confidentiality.
11.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.2.
11.2.2 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 party’s 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 11.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.2.3 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 Agreement.
11.3 Entire agreement.
11.3.1 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.
11.3.2 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.
11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
11.5.1 waive that or any other right or remedy; nor
11.5.2 prevent or restrict the further exercise of that or any other right or remedy.
11.6 Severance. 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.
11.7 Notices.
11.7.1 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 (if it is a company) or its principal place of business (in any other case) 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, sent by pre‐paid first class post or other next working day delivery service, commercial courier, or fax or email.
11.7.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.7.1; if sent by prepaid 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 fax or email, one Business Day after transmission.
11.7.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.8 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.
11.9 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 and Wales.
11.10 Jurisdiction. 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. Nothing in this clause shall limit the right of Ginetta to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of
11.11 proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
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VARIATIONS
We may from time to time amend these terms and conditions and we reserve the right to do so without notice at any time. The amended version will be published on our site.
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