1.1 The Conditions (as defined on the Order Form which accompanies these terms) comprise the terms upon which Kendal Caravans Limited (the “Supplier”) sells goods to customers and supersede any previous terms and conditions or any other terms which the Customer seeks to impose or incorporate of which are implied by trade, custom, practice or course of dealing.
1.2 No additions or modifications to or terms inconsistent with these Conditions shall be binding upon the Supplier unless specifically agreed in accordance with the Conditions.
2.1 The Customer has agreed to purchase and the Supplier has agreed to sell the Goods in accordance with the Conditions.
2.2 In consideration of the sale of the Goods, the Customer has agreed to pay to the Supplier the amounts set out on the Order Form.
3.1 The Customer warrants:
A. That the Customer has the lawful power and ability to enter into this Contract and purchase the Goods;
B. That where applicable the Customer will nominate and have a Pitch ready for Delivery and that details of the Pitch will be supplied to the Supplier in sufficient time prior to Delivery to enable the Supplier to make any necessary arrangements;
C. That, where required, the Supplier and the manufacturer and their representatives, agents or servants will have permission to access the Place of Delivery for the purposes of Delivery, Siting, Connection, PDI and/or for the purposes of carrying out any inspection or any further works or steps necessary in connection with any Defect.
4.1 In the Conditions, the term “Delivery” shall mean completion of either of the steps described in clauses 4.2 or 4.3.
4.2 Where it is agreed that the Supplier is to arrange transportation of the Goods to the Place of Delivery, delivery is completed on the completion of the unloading of the Goods at the Place of Delivery.
4.3 Where it is agreed that the Customer is to arrange for the collection of the Goods from either the Supplier’s premises or the manufacturer’s premises, delivery is completed upon the Customer commencing steps towards loading the Goods for transportation or otherwise transporting the Goods.
4.4 Any dates notified to the Customer for Delivery of the Goods are approximate only, and the time for Delivery of the Goods is not of the essence. The Supplier shall not be liable for any delay that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other assistance that may be relevant to or required in connection with the Delivery of the Goods.
4.5 If the Supplier fails to deliver the Goods, 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. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions or reasonable assistance that are relevant to or may be required in connection with the supply of the Goods.
5.1 Where the Supplier is to provide siting services, upon or following Delivery the Supplier will arrange for the Goods to be installed at a designated pitch at the Place of Delivery (a “Pitch”) and in a manner, that is satisfactory and appropriate for the ordinary use of the Goods (known as “Siting” and the terms “Site” and “Sited” shall be interpreted accordingly). Where required, details of the Pitch at which the Goods will be Sited at the Delivery Location will be given by the Customer to the Supplier in sufficient time prior to Delivery.
5.2 Where the Supplier is to provide connection services, following Siting the Supplier will arrange for the Goods to be connected to any available gas, water and/or electricity supplies/services (as the case may be and as is required by the Customer) at the Place of Delivery (known as “Connection” and the terms “Connect” and “Connected” shall be interpreted accordingly). The Supplier shall not be liable or otherwise responsible in any way to the extent that the any Connection results in inadequate or unsatisfactory services due to limitations of the supplies for such services at the Place of Delivery.
6.1 Unless otherwise agreed, the Supplier shall arrange for a pre-delivery inspection of the Goods (“PDI”) to take place. The Customer shall allow unrestricted access to the Goods for the purposes of carrying out the PDI and for the purposes of taking any steps required in order to correct any issues highlighted during the PDI affecting the Goods. The Customer shall not use the Goods prior to completion of PDI.
6.2 In the event that the Customer becomes aware of any defect or suspected defect affecting the Goods (a “Defect”) then the Customer shall, as soon as is reasonably practical upon becoming aware of such Defect, provide written notification to the Supplier and in the Supplier’s standard format describing the Defect.
6.3 Following notification to the Supplier of any Defect, the Customer shall give the Supplier and/or the manufacturer of the Goods (whether themselves or by their representatives, servants or agents) access to the Goods at the Suppliers’ Premises for the purposes of inspection and/or carrying out any works necessary in relation to a Defect. Unless otherwise agreed, the Customer will be responsible for delivering the Goods to the Supplier at no cost to the Supplier.
6.4 Upon being notified of any Defect by the Customer in accordance with clause 6.2 the Supplier shall:
A. consider the nature of the Defect;
B. report any Defect to the manufacturer of the Goods in accordance with the requirements of any applicable manufacturer warranty and with a view to any required remedial action being taken within a reasonable period of time; and
C. liaise with the Customer and/or the manufacturer of the Goods in relation to the Defect and any steps to be taken by the manufacturer (whether itself or by its representatives, servants or agents) in relation thereto.
6.5 The Supplier shall not be liable in relation to a Defect in the event that:
A. the Customer fails to give proper and/or timely notice to the Supplier in relation to any Defect or makes further use of the Goods after giving notice in accordance with clause 6.2;
B. any Defect has arisen because the Customer or any third party failed to follow the Supplier’s or the manufacturer’s oral or written instructions as to the Siting, Connection, use, commissioning and/or maintenance of the Goods;
C. the Customer has carried out alterations or repairs to Goods without the written consent of the Supplier; or
D. the Defect arises as a result of fair wear and tear, wilful damage, negligence, or improper storage, security, maintenance or use.
6.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7.1 Risk in the Goods shall pass to the Customer upon Delivery from which point, and at all material times thereafter (including but not limited to whilst Goods are in transit), the Customer shall ensure that adequate insurance is in place to cover loss or damage to the Goods in a sum that is at least equal to the full price payable for the Goods by the Customer.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full in cleared funds for the Goods. If the Goods are purportedly sold by the Customer prior to payment being received in full then the proceeds of such sale shall be held by the Customer on trust for the absolute benefit of the Supplier and such proceeds must be paid to the Supplier without any deduction whatsoever immediately upon receipt by the Customer.
8.1 The price of the Goods shall be the provisional price set out on the Order Form.
8.2 Unless otherwise stated, the price of the Goods:
A. include amounts in respect of value added tax (VAT), at the rate set at the date of the Sales Order. The Customer shall liable to pay to the Supplier at the prevailing rate
B. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
C. where a Force Majeure Event increases a price that cannot be avoided, the increased value will be added to the provisional price set out on the order form.
D. if the price on the order form is increased due to 8.2 (C), the Customer will have the right to cancel the order within 7 days of written notification or accept the increased price shown on a new sales order.
8.3 The Deposit shall be paid by the Customer upon submission to the Supplier of the Order Form duly signed. The Deposit is non-refundable save where the Supplier rejects the Customer’s offer to purchase Goods made by submission of the Order Form or if the order is cancelled in reference to clause 8.2 (d)
8.4 Any finance application made by the Customer for the purposes of financing the Goods shall not affect the Contract. Unless otherwise agreed, the rejection of any finance application shall not affect the validity of the Contract.
8.5 Unless otherwise agreed, the balance of the price for the Goods plus any other costs and fees due to the Supplier shall be paid in cleared funds by no later than 7 days prior to the date for Delivery notified to the Customer by the Supplier. Time for payment to the Supplier is of the essence. In the event that payment is not made in accordance with this clause 8.5, the Supplier shall not be obliged to complete Delivery and the Customer shall be required to meet any costs to the Supplier incurred in connection with any arrangements (including but not limited to transportation or Delivery arrangements) required to be cancelled as a consequence.
8.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the base rate of the Bank of England as applicable 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.
8.7 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). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
A. the Customer fails to make any payment due to the Supplier and such payment remains outstanding after 7 days following a notice that such payment is overdue being sent to the Customer;
B. the Customer suspends, threatens to suspend, ceases or threatens to cease payment of its debts or, if appropriate, to carry on all or a substantial part of its business or the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
C. the Customer, being an individual or partnership:
is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
is the subject of a bankruptcy petition or order;
D. the Customer, being a body corporate:
I. is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
II. is the subject of a winding up petition or order or an application for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed or any third party becomes entitled to appoint or has appointed an administrative receiver;
E. the Customer enters into discussions or negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors whether or not by way of formal voluntary arrangement;
9.2 Without limiting its other rights or remedies, the Supplier may suspend performance under the Contract or provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or the Supplier 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.
9.3 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including but not limited to the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.4 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.
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
A. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
B. fraud or fraudulent misrepresentation;
C. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
D. defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 10.1:
A. the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including but not limited to 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
B. the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including but not limited to negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the sums paid to the Supplier under this Contract.
11.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of manufacturers, suppliers or subcontractors.
11.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents the Supplier from providing the Goods for more than 26 weeks from the initial “Sales Order Required Delivery Date”, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract by giving no less than eight weeks’ written notice to the Customer.
12.1 Assignment and other dealings.
A. The Supplier 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.
B. 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 the Supplier.
12.2 Entire agreement.
A. This Contract together with any documents referred to in it 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 agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
12.3 Variation.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.4 Waiver.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
A. waive that or any other right or remedy; nor
B. prevent or restrict the further exercise of that or any other right or remedy.
12.5 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.
12.6 Notices.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
A. 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 the address specified on the Order Form or in these Conditions, sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
B. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.6(A); if sent by pre-paid first class post or other next working day delivery service, at 1.00pm on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one working day after transmission.
C. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.7 Third party rights.
No one other than a party to this Contract shall have any right to enforce any of its terms.
12.8 Governing law.
The Contract, and any dispute or claim (including but not limited to non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.9 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including but not limited to non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
Kendal Caravans Lake District
Shap Rd, Selside,
Kendal LA8 9LF
Kendal Caravans Blackpool
60 Chorley Rd,
Blackpool FY3 7XQ