Terms and Conditions for TRADE CUSTOMERS: servicing, repairs and supply of parts and accessories.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 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 given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 20.8.
Contract: the contract between Toomey and the Customer for the supply of Parts and/or Repair and Servicing Work in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases the Parts and/or Repair and Servicing Work from Toomey.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 19.
Parts: the vehicle parts and/or accessories (or any part of them) set out in the Order.
Parts Specification: any specification for the Parts, including any relevant sizes, weights, capacities, dimensions and measurements, that is agreed by the Customer and Toomey and set out in the Job Card or the Invoice.
Intellectual Property Rights: patents,, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Invoice: the written description or specification of the Parts only provided in the Invoice overleaf by Toomey to the Customer.
Order: the Customer's order for the supply of Parts and/or Repair and Servicing Work, as set out the Job Card or Invoice overleaf.
Repair and Servicing Work: the vehicle repair and servicing work, supplied by Toomey to the Customer as set out in the Job Card.
Service Specification: the description or specification for the Repair and Servicing Work, as set out in the Job Card.
Job Card: the written description or specification for the Parts and Repair and Servicing Work provided in writing in the Job Card overleaf by Toomey to the Customer.
Toomey: Toomey Motor Group Limited registered in England and Wales with company number 00335325.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) 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.
(e) A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Parts and/or Repair and Servicing Work in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Toomey issues:
(a) in the case of an Order for Parts and Repair and Servicing Work or Repair and Servicing Work only, a Job Card, which is signed by the Customer; or
(b) in the case of an Order for Parts only, an Invoice, which is paid in full, in advance and in cleared funds by the Customer,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Toomey and any descriptions of the Parts or illustrations or descriptions of the Repair and Servicing Work contained in Toomey's catalogues, brochures or websites are issued or published for the sole purpose of giving an approximate idea of the Repair and Servicing Work and/or Parts described in them. They shall not form part of the Contract or have any contractual force.
2.4 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.
2.5 Any quotation given by Toomey shall not constitute an offer, and is only valid for a period of 7 Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Parts and Repair and Servicing Work except where application to one or the other is specified.
3. PARTS
3.1 The Parts are described in Toomey's catalogue, brochure or websites as modified by any applicable Parts Specification.
3.2 The Customer shall provide Toomey with such information as it may require in order to supply the Parts, for example, vehicle mileage, registration and/or complete chassis number.
3.3 The Customer shall indemnify Toomey 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 all other professional costs and expenses) suffered or incurred by Toomey arising out of or in connection with any claim made against Toomey for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Toomey's use of the Parts Specification. This clause 3.3 shall survive termination of the Contract.
3.4 Toomey reserves the right to amend the Parts Specification if required by any applicable statutory or regulatory requirement, and Toomey shall notify the Customer in any such event.
4. DELIVERY OF PARTS
4.1 Toomey shall ensure that each delivery of the Parts is accompanied by a delivery note or invoice which shows the date of the Order, all relevant Toomey reference numbers, the type and quantity of the Parts (including the code number of the Parts, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Parts remaining to be delivered.
4.2 Either:
(a) Toomey shall deliver the Parts to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Toomey notifies the Customer that the Parts are ready; or
(b) the Customer shall collect the Parts from Toomey's premises at either Service House, West Mayne, Basildon, Essex, SS15 6RW or Automotive Retail Park, Cherry Orchard Way, Rochford, Southend-On-Sea, Essex SS4 1GP or such other location as may be agreed with the Customer before delivery (Delivery Location) within three Business Days of Toomey notifying the Customer that the Parts are ready.
4.3 Delivery of the Parts shall be completed on the completion of delivery or collection of the Parts at the Delivery Location.
4.4 Any dates quoted for delivery of the Parts are approximate only, and the time of delivery is not of the essence. Toomey shall not be liable for any delay in delivery of the Parts that is caused by a Force Majeure Event or the Customer's failure to provide Toomey with adequate delivery instructions or any other instructions that are relevant to the supply of the Parts.
4.5 If Toomey fails to deliver the Parts, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Parts of similar description and quality in the cheapest market available, less the price of the Parts. Toomey shall have no liability for any failure to deliver the Parts to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Toomey with adequate delivery instructions for the Parts or any relevant instruction related to the supply of the Parts.
4.6 If the Customer fails to take or accept delivery of the Parts within three Business Days of Toomey notifying the Customer that the Parts are ready, then except where such failure or delay is caused by a Force Majeure Event or by Toomey's failure to comply with its obligations under the Contract in respect of the Parts:
(a) delivery of the Parts shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Toomey notified the Customer that the Parts were ready; and
(b) Toomey shall store the Parts until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Toomey notified the Customer that the Parts were ready for delivery the Customer has not taken or accepted delivery of them, Toomey may resell or otherwise dispose of part or all of the Parts and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Parts or charge the Customer for any shortfall below the price of the Parts.
4.8 Toomey may deliver the Parts by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY OF PARTS
5.1 Toomey warrants that on delivery, the Parts shall:
(a) conform in all material respects with their description and any applicable Parts Specification;
(b) be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, Toomey shall, at its option, repair or replace the defective Parts, or refund the price of the defective Parts in full if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Parts do not comply with the warranty set out in clause 5.1;
(b) Toomey is given a reasonable opportunity of examining such Parts; and
(c) the Customer (if asked to do so by Toomey) returns such Parts to Toomey's place of business at the Customer's cost.
5.3 Toomey shall not be liable for the Parts' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Parts after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow Toomey's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Parts or (if there are none) good trade practice;
(c) the defect arises as a result of Toomey following any drawing, design or Parts Specification supplied by the Customer;
(d) the Customer fails to provide Toomey with information, or accurate or complete information, in accordance with clause 3.2;
(e) the Customer alters or repairs such Parts without the written consent of Toomey;
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(g) the Parts differ from the Parts Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, Toomey shall have no liability to the Customer in respect of the Parts' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Parts supplied by Toomey.
6. TITLE AND RISK
6.1 The risk in the Parts and/ or material supplied in the course of the Repair and Servicing Works shall pass to the Customer:
(a) In the case of Parts, on completion of delivery; and
(b) in the case of material supplied in the course of the Repair and Servicing Works, when collected by the Customer.
6.2 Title to the Parts and/ or material supplied in the course of the Repair and Servicing Works shall not pass to the Customer until the earlier of:
(a) Toomey receives payment in full (in cash or cleared funds) for the Parts and any other Parts that Toomey has supplied to the Customer in respect of which payment has become due, in which case title to the Parts and/ or material supplied in the course of the Repair and Servicing Works shall pass at the time of payment of all such sums; and
(b) the Customer resells the Parts, and/ or material supplied in the course of the Repair and Servicing Works in which case title to the Parts shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Parts and/ or material supplied in the course of the Repair and Servicing Works has passed to the Customer, the Customer shall:
(a) store the Parts and/ or material supplied in the course of the Repair and Servicing Works separately from all other parts held by the Customer so that they remain readily identifiable as Toomey's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Parts and/ or material supplied in the course of the Repair and Servicing Works;
(c) maintain the Parts and/ or material supplied in the course of the Repair and Servicing Works in satisfactory condition and keep them insured against all risks for their full price on Toomey's behalf from the date of delivery;
(d) notify Toomey immediately if it becomes subject to any of the events listed in clause 15.1(a) to clause 15.1(c); and
(e) give Toomey such information relating to the Parts and/ or material supplied in the course of the Repair and Servicing Works as Toomey may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Parts and/ or material supplied in the course of the Repair and Servicing Works in the ordinary course of its business (but not otherwise) before Toomey receives payment for the Parts and/ or material supplied in the course of the Repair and Servicing Works. However, if the Customer resells the Parts and/ or material supplied in the course of the Repair and Servicing Works before that time:
(a) it does so as principal and not as Toomey’s agent; and
(b) title to the Parts and/ or material supplied in the course of the Repair and Servicing Works shall pass from Toomey to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Parts and/ or material supplied in the course of the Repair and Servicing Works passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(a) to clause 15.1(c), then, without limiting any other right or remedy Toomey may have:
(a) the Customer's right to resell Parts and/ or material supplied in the course of the Repair and Servicing Works or use them in the ordinary course of its business ceases immediately; and
(b) Toomey may at any time:
(i) require the Customer to deliver up all Parts and/ or material supplied in the course of the Repair and Servicing Works in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Parts and/ or material supplied in the course of the Repair and Servicing Works are stored in order to recover them.
7. LIEN
Toomey shall have a general lien on any vehicle on which it has carried out Repair and Servicing Work and on any other property in its possession belonging to the Customer for all monies due and owing to Toomey by the Customer on any account or invoice whatsoever. Toomey shall be entitled to charge for garaging the vehicle at its usual rates of £14.00 plus VAT per day during any period in which the vehicle is retained by it in exercise of any lien.
8. SUPPLY OF REPAIR AND SERVICING WORK
8.1 Toomey shall supply the Repair and Servicing Work to the Customer in accordance with the Service Specification in all material respects.
8.2 Toomey shall use all reasonable endeavours to meet any performance dates for the Repair and Servicing Work specified in the Job Card, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Repair and Servicing Work.
8.3 Toomey reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Repair and Servicing Work, and Toomey shall notify the Customer in any such event.
8.4 Toomey warrants to the Customer that the Repair and Servicing Work will be provided using reasonable care and skill.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and the Parts Specification are complete and accurate;
(b) co-operate with Toomey in all matters relating to the Repair and Servicing Work;
(c) provide Toomey, its employees, agents, consultants and subcontractors, with access to the Customer's vehicle as reasonably required by Toomey to provide the Repair and Servicing Work;
(d) provide Toomey with such information and materials as Toomey may reasonably require in order to supply the Repair and Servicing Work, and ensure that such information is complete and accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Repair and Servicing Work before the date on which the Repair and Servicing Work are to start;
(f) comply with all applicable laws, including health and safety laws;
(g) comply with any additional obligations as set out in the Service Specification and the Parts Specification.
9.2 If Toomey's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Toomey shall have the right to suspend performance of the Repair and Servicing Work until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Toomey's performance of any of its obligations;
(b) Toomey shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Toomey's failure or delay to perform any of its obligations as set out in this clause 9.2; and
(c) the Customer shall reimburse Toomey on written demand for any costs or losses sustained or incurred by Toomey arising directly or indirectly from the Customer Default.
10. CHARGES AND PAYMENT
10.1 The price for Parts:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in Toomey's published price list as at the date of delivery; and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Parts, which shall be invoiced to the Customer.
10.2 The charges for Repair and Servicing Work shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with Toomey's hourly fee rates, as set out in Order; and
(b) Toomey shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Toomey engages in connection with the Repair and Servicing Work including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of Repair and Servicing Work provided by third parties and required by Toomey for the performance of the Repair and Servicing Work, and for the cost of any materials.
10.3 In respect of Parts, Toomey shall invoice the Customer at the time the Order for Parts is placed by the Customer. In respect of Repair and Servicing Work only or Parts and Repair and Servicing Work, Toomey shall invoice the Customer on completion of the Repair and Servicing Work.
10.4 The Customer shall pay each invoice submitted by Toomey:
(a) in respect of Parts, in advance and at the point that the Order for Parts is accepted by Toomey;
(b) in respect of Repair and Servicing Work only, or Parts and Repair and Servicing Work, immediately upon issue of the invoice by Toomey; and
(c) in the case of either (a) or (b) full and in cleared funds to a bank account nominated in writing by Toomey, and
time for payment shall be of the essence of the Contract.
10.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Toomey to the Customer, the Customer shall, on receipt of a valid VAT invoice from Toomey, pay to Toomey such additional amounts in respect of VAT as are chargeable on the supply of the Repair and Servicing Work or Parts at the same time as payment is due for the supply of the Repair and Servicing Work or Parts.
10.6 If the Customer fails to make a payment due to Toomey under the Contract by the due date, then, without limiting Toomey's remedies under clause 15 (Termination), 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 10.6 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%.
10.7 All amounts due under the Contract 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).
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Repair and Servicing Work (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Toomey.
11.2 The Customer grants Toomey a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Toomey for the term of the Contract for the purpose of providing the Repair and Servicing Work to the Customer.
12. DATA PROTECTION
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 12, Applicable Laws means (for so long as and to the extent that they apply to Toomey) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Toomey is the processor.
12.3 Without prejudice to the generality of clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Toomey for the duration and purposes of the Contract.
12.4 Without prejudice to the generality of clause 12.1, Toomey shall, in relation to any personal data processed in connection with the performance by Toomey of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless Toomey is required by Applicable Laws to otherwise process that personal data. Where Toomey is relying on Applicable Laws as the basis for processing personal data, Toomey shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Toomey from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and Repair and Servicing Work, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Toomey has provided appropriate safeguards in relation to the transfer;
(ii) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) Toomey complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Toomey complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and immediately inform the Customer if, in the opinion of Toomey, an instruction infringes the Data Protection Legislation.
12.5 Either party may, at any time on not less than 30 days' notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
13. CONFIDENTIALITY
13.1 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 13.2.
13.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
14. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
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14.3 Subject to clause 14.2, Toomey's total liability to the Customer shall not exceed the lesser of either (a) £7,500.00; or (b) the price of the Parts and/or Repair and Servicing Work under the Contract.
14.4 This clause 14.4 sets out specific heads of excluded loss:
(a) Subject to clause 14.2, the types of loss listed in clause 14.6(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of, or damage to, property, items or belongings left in a vehicle;
(vii) loss of or damage to goodwill; and
(viii) indirect or consequential loss.
14.5 Toomey has given commitments as to compliance of the Parts and Repair and Servicing Work with relevant specifications in clause 5 and clause 8. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Parts Act 1979 and sections 3, 4 and 5 of the Supply of Parts and Repair and Servicing Work Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.6 Unless the Customer notifies Toomey that it intends to make a claim in respect of an event within the notice period, Toomey shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.7 This clause 14 shall survive termination of the Contract.
15. TERMINATION
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party 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;
(b) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(c) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.2 Without affecting any other right or remedy available to it, Toomey may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
15.3 Without affecting any other right or remedy available to it, Toomey may suspend the supply of Repair and Servicing Work or all further deliveries of Parts under the Contract or any other contract between the Customer and Toomey if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.1(a) to clause 15.1(c), or Toomey reasonably believes that the Customer is about to become subject to any of them.
16. CONSEQUENCES OF TERMINATION
16.1 On termination of the Contract:
(a) the Customer shall immediately pay to Toomey all of Toomey's outstanding unpaid invoices and interest and, in respect of Repair and Servicing Work and Parts supplied but for which no invoice has been submitted, Toomey shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all Parts which have not been fully paid for. If the Customer fails to do so, then Toomey may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
17. SUB- CONTRACTORS
Toomey shall be entitled at our sole discretion to employ or make use of sub-contractors for the Repair and Servicing Work to be provided to the Customers. Toomey shall be liable for the Repair and Servicing Work carried out, and materials and Parts supplied by such sub- contractors, subject to the limitations on liability contained within this Contract.
18. AUTHORITY TO DRIVE VEHICLES
By entering into this Contract, the Customer hereby authorises Toomey, along with Toomey’s employees, agents and sub- contractors to drive the Customer’s vehicle for the purposes of inspection, testing and repair on the public highway and elsewhere.
19. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).
20. GENERAL
20.1 Assignment and other dealings
(a) Toomey may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Toomey.
20.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by fax to its main fax number or sent by email to the address specified in the Job Card or Invoice as applicable.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) 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; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 20.2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 20.2 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.
20.3 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 20.3 shall not affect the validity and enforceability of the rest of the Contract.
20.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
20.6 Entire agreement.
(a) The 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.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
20.7 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
20.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
20.9 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.
20.10 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 the Contract or its subject matter or formation.
