Terms & Conditions for the Supply and Purchase of Lister Race Cars.
(a)The order for sale of a race car by us, the Lister Motor Company Limited (“Lister”) at the agreed price (“the Total Ex Works Price”) by you (“the Customer”) incorporates the following clauses and only becomes binding after being accepted by Lister.
(b)The order (except where varied by an agreement between the parties which is recorded in writing and signed by an authorised representative of Lister) shall constitute the entire contract between the parties. Lister’s legal duty is to provide the race car as described on the face of the order form (“the Vehicle”) to the terms of the contract.
(c)No person who is not a party to the contract may in its own right enforce any terms of the contract provided that this clause shall not affect any right of action of any person to whom this contract is lawfully assigned.
(a)Lister will use its best endeavours to secure an estimated delivery date, but shall be under no liability whatsoever for loss occasioned by delay in delivery arising out of any cause beyond the control of Lister.
(b)The Vehicle may be delivered by Lister or its agent at any time and date in advance of the estimated delivery date upon giving 14 days prior notice to the Customer.
(c)If the Vehicle is not delivered within sixty calendar months of the estimated delivery date (if any) the Customer or Lister may elect by notice in writing to the other party to cancel this contract. Upon such cancellation the Customer’s deposit shall be returned and Lister shall be under no further liability to the Customer. In the event that no estimated delivery date is given, Lister will deliver the Vehicle within 1 month of the Vehicle being made ready for delivery.
(d)Delivery shall be deemed to have been made on the date that the Vehicle is made available for collection by the Customer and Lister has given notice to the Customer that the Vehicle are ready for collection. The Vehicle will be physically delivered by Lister to the Customer only where agreed by Lister and at the Customer’s cost.
(e)Lister may at any time cancel the contract if George Lister Engineering Limited is for any reason unable to complete the Vehicle. If Lister is unable to supply any option or accessory, whether factory fitted or otherwise, Lister may at its discretion either substitute a reasonable equivalent or delete the option or accessory from the contract. If any accessory is deleted the purchase price shall be adjusted by the price thereof. The inability of Lister to supply an option or accessory shall not constitute a breach of contract or entitle the Customer to reject the Vehicle.
3.PRICE AND PAYMENT
(a)The Customer shall not be permitted to collect and take away the Vehicle until the Total Ex Works Price of the Vehicle as stated has been discharged in full (without set-off or counterclaim) unless this condition has been expressly excluded in writing by an authorised representative of Lister. Time of payment shall be of the essence.
(b)If the Total Ex Works Price or any part of the price for the Vehicle is to be paid by cheque whether bank or building society then prior notice of such payment shall be made to Lister and the cheque must be paid to Lister at least five banking days in advance of the estimated delivery date. A cheque given in payment or part payment shall not be treated as a discharge until the same has been cleared.
(c)If the Total Ex Works Price or any part of the price for the Vehicle is to be paid by cash (the maximum amount of a cash payment that is permissible being £5,000 in value) or bankers draft then such payment or part payment may be made on the day of collection (subject to Lister being given an opportunity to confirm the validity of such draft) provided that the Vehicle shall be collected within 14 days of delivery.
(d)Notwithstanding the provisions of this contract the Customer may, within 7 days of receipt of notification that the Vehicle are ready for delivery arrange for a finance company to purchase the Vehicle from Lister at the price payable hereunder. Lister shall not release the Vehicle until the Total Ex Works Price has been discharged in full, including receipt of cleared funds from the said finance company.
4.FAILURE TO COLLECT GOODS
If the Customer shall fail to collect and/or pay for the Vehicle within 14 days of the date of delivery (as provided for in clause 2(d)) then Lister may at its option either store the Vehicle at the Customer’s cost or, upon giving the Customer 7 days’ notice of its intention to do so, elect to treat the contract as repudiated by the Customer and thereupon any sums paid by the Customer shall be returned less a sum equivalent to ten per cent of the Ex Works Price, any damages, loss or expenses which Lister may have suffered or incurred by reason of the Customer’s default (including as a result of selling such vehicle at a lower value) and/or storage costs and Lister shall be under no further liability to the Customer.
(a)The Vehicle shall be warranted to be free from defects in materials and workmanship on manufacture and Lister shall repair any faults which arise in accordance with such warranty for at least one year from the date of supply with no mileage limitation. Any parts which require replacement during the period of the warranty as a result of wear and tear (for example but without limitation, the brake pads etc) are excluded from the warranty. The warranty is not affected by any change of ownership of the Vehicle. Remedial work under such warranty may be carried out only by a suitably qualified repairer (Engineer) approved by Lister at whose sole option any defective parts will be repaired or replaced. Any part replaced under the warranty is warranted to be free from defects in parts and materials until expiry of the original vehicle warranty. The warranty does not apply if and to the extent that the defect is caused or worsened by one of the following circumstances:
(i)after discovering the defect the Customer has failed either to inform Lister or to have the defect examined by an Engineer without reasonable delay;
(ii)has failed to give an Engineer the option to repair the Vehicle without reasonable delay;
(iii)the Vehicle or any part thereof have been subject to misuse, negligence, or accident;
(iv)if the Vehicle have been repaired or maintained and that repair or maintenance has not been carried out by or through an Engineer and/or to Lister’s recommendations;
(v)parts have been installed into the Vehicle the use of which have not been approved by Lister or if the Vehicle have been altered or modified in a manner not approved by Lister;
(vi)instructions concerning the treatment, maintenance and care of the Vehicle have not been adhered to.
(b)In the case of the Vehicle being a second-hand vehicle, Lister shall transfer to the Customer the unexpired portion of Lister’s warranty (if any). The Customer acknowledges that in the case of the Vehicle being a second-hand vehicle the Vehicle will be sold subject to such wear and tear as is reasonable for a vehicle of its age, type, usage and mileage; and subject to paintwork and/or bodywork repairs that may have been carried out to it.
6.EXAMINATION OF GOODS AND RELIANCE
(a)Prior to signing the final delivery form the Customer shall examine the Vehicle to be purchased and the Customer is reminded that the Vehicle is ‘hand built’ and that the condition of satisfactory quality implied by legislation does not operate in relation to such defects which such a visual examination ought to reveal. If the Vehicle is sold subject to defects which have been notified by Lister to the Customer before the signing of the final delivery form, the condition of satisfactory quality referred to above does not operate in relation to those defects.
(b)The Customer confirms that it has satisfied itself as to the suitability of the Vehicle for its own requirements (whether for race or road use) and has not relied upon Lister's skill or knowledge regarding the Vehicle' fitness for any particular purpose or use.
Without prejudice to the terms of Lister’s warranty, where any valid claim in respect of the Vehicle which is based on any defect in the quality or condition of the Vehicle based on materials or workmanship or their failure to meet the specification is notified to Lister, Lister shall be entitled at its sole discretion either to replace or repair the part in question free of charge or to refund to the Customer a proportion of the price paid, thereafter Lister shall have no further liability to the Customer. Lister will not be liable where any defect results from or is worsened by accident, negligence, misuse, wear and tear or any of the other circumstances described herein.
8.SALE TO INTERMEDIARIES OR THIRD PARTIES
The Customer confirms that it is not purchasing the Vehicle as an intermediary or reseller unless specifically agreed by Lister to the contrary. Lister may, at its discretion refuse to change the Customer’s details or identity on the order or register the Vehicle to anybody other than the Customer.
9.RETENTION OF TITLE
(a)Notwithstanding delivery, collection and/or the passing of risk in the Vehicle, or any other provision of these terms and conditions, the property in the Vehicle shall not pass to the Customer until the Total Ex Works Price has been discharged in full and, in the case of a payment by cheque, the cheque has been cleared.
(b)Until such time as the property ownership in the Vehicle passes to the Customer and where the Customer takes delivery, the Customer shall keep the Vehicle properly stored, protected and insured and identified as Lister’s property. Further, Lister shall be entitled at any time to require the Customer to deliver up the Vehicle to Lister and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Vehicle are stored and repossess the Vehicle.
(c)The Customer shall not be entitled to sell, pledge or in any way charge by way of security for any indebtedness any Goods which remain the property of Lister, but if the Customer does so all monies owing by the Customer to Lister shall (without prejudice to any other right or remedy of Lister) forthwith, become due and payable.
(a) Except as provided by law, or previously herein, no order which has been accepted by Lister may be cancelled by the Customer except with the agreement in writing of Lister and on terms that the Customer’s deposit shall be forfeit and further that the Customer shall indemnify Lister in full against any losses, costs, damages, charges and expenses incurred by Lister as a direct result of cancellation.
(b) If the Vehicle has been designed or in any way personalised to meet the Customer’s own requirements then the Customer does not have the right to cancel the contract.
Without prejudice to the above any claim by the Customer which is based on any defect in the quality or condition of the Vehicle on delivery or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to Lister within 14 days from the date of collection of the Vehicle or the date of refusal of delivery as the case may be or (where the defect or failure is not apparent upon reasonable inspection) within a reasonable time after the discovery of the defect or failure. If delivery is not refused, and the Customer does not notify Lister as above the Customer shall be deemed to have accepted the Vehicle.
Except in respect of death or personal injury caused by Lister’s negligence, Lister shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other terms, or any duty at common law, or under the express terms of this contract, for: (a) any loss or damage incurred by the Customer as a result of third party claims; (b) loss of actual or anticipated profits; (c) loss of business opportunity; (d) loss of anticipated savings; (e) loss of goodwill; (f) injury to reputation; (g) any indirect, special or consequential loss or damage howsoever caused even if Lister was advised of the possibility of them in advance; or (h) any direct or indirect loss or disappointment caused by the cancellation of the contract which arise out of or in connection with the supply of the Vehicle or their resale by the Customer, except as expressly provided in these terms and conditions. Nothing in this clause shall operate to restrict or exclude Lister’s liability or limit the Customer’s rights in any way that cannot be restricted, excluded or limited by law.
In the event that:
(a)the Customer is a company and makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrative receiver appointed or goes into insolvent liquidation; or
(b)the Customer is a partnership and becomes wound-up or a receiver is appointed or if it enters into an individual voluntary arrangement; or
(c)the Customer is an individual and enters into an arrangement, compromise or composition in satisfaction of debts with his creditors or a bankruptcy; or
(d)if Lister reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer or that the Customer will be unable to meets its financial obligations in respect of this agreement; or
(e)if the Customer is in material breach of any obligations under the contract (including but not limited to any of the clauses herein) then, without prejudice to any other right or remedy available to Lister, Lister shall be entitled to cancel this contract or suspend delivery under this contract and forfeit any deposit paid by the Customer without any liability to the Customer, and if the Vehicle shall have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
The Customer shall be deemed to be personally liable for the contract even though he shall later hold himself out as acting as agent for a principal and despite him having purported to sign the order form overleaf in a representative capacity so that their liability shall be joint and several. The Customer warrants that he has the authority to bind the principal to the contract as agent on its behalf.
Lister shall keep and use any data relating to the Customer in accordance with the provisions of all relevant data protection legislation and the Customer consents to such data being kept and used for appropriate purposes, including informing the Customer of any offers or other matters of interest from time to time.
Any notice that is given hereunder may be given in writing, by electronic mail or communicated verbally. Notices in writing shall be posted or faxed to the residence or place of business of the person to whom it is addressed and shall be deemed to have been received, in the case of facsimile or electronic mail on the day of transmission and in the case of notice given by post, within two days of posting.
Any waiver by Lister or the Customer of any breach of contract by the other shall be in writing and shall not be construed as a waiver of any subsequent breach of the same or of any other provision. Without prejudice to the generality of the foregoing, failure by either party to enforce at any time or for any period any one or more of the conditions shall not be a waiver of them or of the right at any time subsequently to enforce all of them.
18.INVALIDITY OF THESE TERMS
If any provisions of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the remaining provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby. As far as it is possible to do so any clause that is in whole or in part invalid or unenforceable shall be interpreted with the minimum possible amendment so that the clause or part thereof is found to be valid and/or enforceable and gives effect as far as possible to the previously expressed intention of the clause.
This contract shall be governed by the Laws of England and Wales and the parties shall submit to the jurisdiction of the English Courts.