THELMOCO Terms & Conditions of Sale
In these conditions:
a. ‘Buyer’ means any person who places an order and enters into a contract with The Electric Motorbike Company Ltd of Greenhill House, 26 Greenhill Crescent, Watford, WD18 8JA Registered in England under number 11136345 (the Seller) for the sale of Goods and or Vehicles.
b. ‘Consumer’ means a Customer, being an individual who, for the purposes of the purchase, is acting wholly or mainly outside of their trade, business, craft or profession.
c. ‘Conditions ‘mean the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
d. ‘Contract ‘means the contract for the purchase and sale of the Goods.
e. ‘Customer’ means any Consumer or Dealer.
f. ‘Dealer’ means any person or body corporate engaged in the sale, resale or maintenance of vehicles to Consumers.
g. ‘Goods ‘means all vehicles, or other items to be sold by the Seller to the Buyer.
h. ‘Vehicle’” means any car, motorcycle, scooter or moped and generally each and every accessory to and component thereof.
i. ‘Writing ‘includes email, text, other messaging media Including but not limited to WhatsApp or Facebook Messenger), cable, facsimile transmission and any comparable means of communication.
2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
Basis of Sale
4. The Seller shall sell and the Buyer shall purchase the Goods in accordance with the quotation of the Seller, or any written order of the Buyer (which is accepted by the Seller), subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions (including any terms or conditions which the Buyer attempts or purports to apply under any purchase order, confirmation of order, specification or other document).
5. No variation to these Conditions shall be binding unless agreed in Writing between authorised representatives of the Buyer and the Seller.
6. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by an authorised officer of the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
7. Any advice or recommendation given by the Seller or its employees or agents to the Buyer as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any such advice or recommendation.
8. Any manifest typographical, clerical or other error or omission in any sales literature, quotation, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
Orders and specifications
9. Notwithstanding any purported acceptance by the Buyer of the terms of any quotation of the Seller, no order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Sellers authorised representative.
10. The quantity, quality and description of any specification for the Goods shall be those set out in the Sellers quotation or the Buyers order (if accepted by the Seller).
11. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
12. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour, and materials used), transportation charges, duties, damages, charges and expenses incurred by the Seller as a result of cancellation.
13. In the event of cancellation, for any reason, the customer agrees to return the Goods to the Seller in the same condition as when delivered and indemnifies the Seller against any and all costs it may incur necessary in its opinion to restore the Goods to the condition in which they were originally supplied.
14. Notwithstanding any provision to the contrary in these Conditions all intellectual property rights in the Goods and any information relating thereto of whatever nature and whether registerable or not (save where the Goods are manufactured to the specification of the Buyer) shall vest in and remain the property of the Seller and accordingly the Buyer shall at all times keep confidential all such matters and shall not use the same for any purpose without the consent of the Seller in Writing.
a. this Agreement and the delivery of the Goods shall be subject to any terms and conditions which the Seller may from time to time lawfully attach to the supply of the Goods or the resale of such Goods by the Dealer.
c. The Seller undertakes that they will ensure that any pre-delivery work specified by the manufacturer is performed and that they will use all reasonable endeavours to obtain for the Customer from the manufacturer the benefit of any warranty or guarantee given by them to The Seller or to the Customer in respect of the Goods and, save where the Customer is acting as a consumer (as defined by Legislation) all statements, conditions or warranties expressed or implied by law or otherwise, are hereby expressly excluded except as set out below in these terms and conditions.
d. Any figure provided in the contract for taxes, rebates or grants is provided as guidance only. Notwithstanding the sums specified in the order, the sum payable by the Customer shall be the net sum due to the Seller after adding or deducting any taxes, grants and rebates applicable at the time of completion of the agreement.
e. if after the date of this order and before delivery of the Goods to the Customer, the manufacturer’s recommended price for any of the Goods, or specification of the same shall be altered, The Seller shall give notice of any such alteration to the Customer, and
i. in the event of the manufacturer’s recommended price for the Goods being increased, the amount of such increase which The Seller intends to pass to the Customer shall be notified to the Customer. The Customer shall have the right to cancel the contract within 14 days of the receipt of such notice. If the customer does not give such notice as aforesaid, the increase in the price shall be added to become part of the contract price.
ii. in the event of the recommended price being reduced, the amount of such reduction, if any, which The Seller intends to allow to the Customer shall be notified to the Customer.
f. in the event of the manufacturer of the Goods described in the order ceasing to make the Goods of that type, the Customer may (whether the estimated delivery date has arrived or not) by notice in writing to the Seller, cancel the contract on the grounds of frustration.
g. Save in the case of consumer sales (as defined) all statements, conditions or warranties as to the quality of the Goods or their fitness for any purpose whether express or implied by law or otherwise are hereby expressly excluded.
16. if the goods to be supplied by the Seller are used, the vehicle is supplied as roadworthy at the date of delivery and, in the case of consumer sales (as defined by the Sale of Goods Legislation):
a. is sold subject to any conditions or warranties that are implied by the Sale of Goods Legislation or any amending statutes.
b. Prior to signing the order form, the Customer shall examine the Vehicle and items set out in the Customer’s Certificate of Examination and the Customer is reminded that the conditions of satisfactory quality and fitness for purpose implied by the Sale of Goods Legislation do not operate in relation to such defects which the examination ought to have revealed. Should the Goods be sold subject to defects notified by the Seller to the Customer before signing the agreement, the implied conditions of satisfactory quality and fitness for purpose do not operate in relation to those defects.
c. Save in the case of Consumer sales (as defined) all statements, conditions, or warranties as to the quality of the Goods or their fitness for any purpose whether express or implied by law or otherwise, are hereby expressly excluded.
17. Where the Seller agrees to allow part of the price of the Goods to be discharged by the customer delivering a used Vehicle in part exchange to the Seller, in consideration of such allowance, it is hereby agreed that the following conditions will apply.
a. That the Seller accepts the used vehicle in reliance of the warranties granted by the Customer, including but not limited to the age, mileage and condition of the vehicle; AND
b. that such used Vehicle is the absolute property of the Customer and is free from all encumbrances; OR
c. that such used vehicle is the subject of a hire purchase or agreement or other encumbrance capable of cash settlement by the Seller, in which case the allowance shall be reduced by the amount required to be paid by The Seller in settlement thereof.
d. If the Seller has examined the said used vehicle prior to his confirmation and acceptance of this order, the used vehicle shall be delivered to them in the same condition as at the date of such examination (fair wear and tear excepted).
e. Such used Vehicle shall be delivered to the Seller on or before delivery of the Goods to be supplied by them, and the property in the said used Vehicle shall thereupon pass to the Seller absolutely.
f. Without prejudice to the above, such used Vehicle shall be delivered to the Seller within 14 days of notification to the Buyer that the Goods to be supplied by the Seller are available for delivery.
g. In the event of the non-fulfilment of any of the foregoing conditions the Seller shall be discharged from any obligations 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 the Seller.
Price of Goods
18. The price of the Goods shall be the Sellers quoted price. All prices quoted are valid for 30 days only, after which time they may be altered by the Seller without giving notice to the Buyer.
19. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any change in delivery dates, exchange rates, rates of duty, imposition of import tariffs, quantities or specifications for the Goods.
20. The Seller reserves the right, by giving notice to the Buyer at any time up to 7 days before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is both beyond the reasonable control of the Seller and due to fluctuations in exchange rates or an increase in the cost of raw materials occurring after the making of this Contract.
21. Unless otherwise specified, the price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
22. Unless otherwise specified, the Customer shall be liable for all charges connected with the first registration of the vehicle and the supply of a suitable number plate.
Terms of payment
23. The Customer shall be liable to pay for the Goods immediately upon notification by the Seller that they are available for delivery unless other payment terms have been agreed in writing at the time of placing the order.
24. The Seller may, at its absolute discretion, demand a deposit at the time when the order for Goods is placed by the Customer and shall not be obliged to progress the order or otherwise implement the contract until such deposit is paid in full.
25. Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods immediately prior to delivery or at the seller’s absolute discretion any time after delivery of the Goods, unless the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has tendered delivery of the Goods.
26. Unless otherwise agreed in writing if the Buyer is a Dealer, he shall pay the price of the Goods within 30 days of the date of the Sellers invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
27. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
a. Charge interest on any and all outstanding amounts at the rate of 8 per cent over Bank of England base rate under the Payment of Commercial Debt (Interest) Act (1988) (amended 2002)
b. Cancel the contract or suspend any further deliveries to the Buyer; and
c. Appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).
Right of Lien
28. The Seller shall have a general lien on any property of the Buyer in its possession for all monies owing to The Seller by the Buyer on any account whatsoever.
29. Unless otherwise agreed in writing delivery of the Goods shall take place at the Seller’s premises unless agreed differently in writing.
30. If delivery is not made at the Seller’s premises, all delivery charges shall be for the account of the Buyer.
31. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence.
32. Where the Goods are to be delivered in part shipments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the shipments in accordance with these Conditions or any claim by the Buyer in respect of any one or more shipments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
33. Where the date for delivery of the goods is not known at time of sale, any date provided is an estimate only and is dependent on the provision of the Goods to the Seller by the Supplier/ Manufacturer. The Seller will use all reasonable endeavours to secure delivery of the Goods by the estimated delivery date (if any) but does not guarantee the time of delivery. The seller shall not be liable for any loss or damage arising out of late or delayed delivery.
34. The Seller shall not be obliged to fulfil orders in the sequence in which they are placed.
35. Goods supplied by the order of any person in the Buyer’s employment or by any person reasonably believed The Seller to be the Buyer’s agent or by any person to whom The Seller is entitled to make delivery of the vehicle shall be paid for by the Buyer.
Authority to Uplift
36. Where a person who, so far as the Seller is aware, has authority to uplift Goods or Vehicles and does so; the Seller shall have no liability to the Buyer for any loss or damage resulting on any grounds whatsoever. The Seller shall not be obliged to confirm the authority of any person reasonably believed to be the agent, or to have been at some time, connected with the Buyer.
Authority to Drive
37. In connection with the supply of a Vehicle or an inspection or testing or the preparation of any estimate in connection therewith, the Seller shall be entitled to drive the vehicle on the road or elsewhere as it shall deem necessary. These provisions shall apply also to any Vehicle offered by the Customer in part-exchange in terms of clause 1717.
38. Notwithstanding the provisions of this agreement, the Buyer shall be at liberty at any time prior to notification that the Goods are available for delivery to arrange for a finance company to purchase the Goods from the Seller at the price payable hereunder. Upon the purchase of the Goods by such finance company, the proceeding clauses of this agreement except Clause 15 shall cease to have effect but any used Vehicle for which an allowance was there under agreed to be made to the Buyer shall be bought by The Seller at the price equal to such allowance, upon the conditions set forth in Clause 17 above (save that all reference to ‘delivery’ or ‘delivered’ in relation to the ‘Goods’ shall be construed as meaning delivery or delivered by the Seller to or to the order of the finance company) and the Seller shall be accountable to the finance company on behalf of the Buyer for the said price and any deposit paid by him under this agreement.
Repudiation by Customer
39. If the Customer does not pay for and take delivery his vehicle within 14 days of notification that the vehicle is available for delivery, the Seller shall be at liberty to treat the contract as cancelled. If this happens, or if the contract is cancelled for any other reason the Seller shall use all reasonable endeavours to sell the vehicle to another Customer. Any deposit received may be refunded but the Seller shall be entitled to recover from the deposit any and all additional costs incurred in re-selling the vehicle in addition to any reduction in the sales price achieved. The Seller shall keep the deposit whilst the vehicle is displayed and advertised as being for sale. If it is not sold within a reasonable time the Seller shall have the right to sell it at auction.
40. Once the vehicle has been sold, the Seller shall notify the Customer within 7 days of any loss incurred. If this amount is less than the deposit, then the balance will be refunded. If the amount is more than the deposit, then the Seller shall provide a certificate of loss which shall constitute absolute proof as to the amount due to the Seller and shall be due and payable on demand.
Risk and property
41. Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the goods.
42. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
43. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Sellers fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Sellers property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods , whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
44. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) , the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the Goods.
45. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
Electric Motorcycle Warranty
46. Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification and will be free from defects in material and workmanship at the time of delivery.
47. On new Vehicles, the seller warrants the frame, electric motor, controller, electric circuits and charger for a period of 24 months from the date of first registration against any manufacturing defect and the Seller will repair or replace (at his absolute discretion) the components if the materials or workmanship in question are defective.
48. The warranty shall not apply to
a. any item that has been modified, neglected or poorly maintained, used for commercial purposes, misused or abused or involved in an accident.
b. damage resulting from improper assembly or repair, the use or installation of parts or accessories not compatible with the original intended use of the Goods, or the failure to follow the product warnings and usage instructions.
c. deterioration to the surface finish, aesthetics or appearance of the product.
d. labour required to remove and/or re-fit and re-adjust any item covered by this warranty.
e. wear and tear arising from normal use of the Goods.
f. light bulbs, LEDs, tyres or other consumable items.
Lithium Ion battery Warranty
49. The Seller warrants the Lithium ion batteries supplied with the Vehicle will maintain at least 80% of its initial or rated charge capacity for a period of 36 months from the date of first registration and the Seller will (at his absolute discretion) repair or replace the battery and/or parts of the battery if the components in question are defective in materials or workmanship.
50. The battery warranty shall not apply if:
a. the battery casing has been tampered with or if the manufacturer’s seal is broken
b. damage is caused by use of a charger not supplied with the battery or not approved by the Seller
c. damage is caused by connecting the battery to a mains supply without using the charger
d. the Battery Management System has detected any of the following conditions arising out of misuse of the batteries: short circuit, reverse polarity, overcharge and over discharge voltage protection.
e. there is failure to properly install the battery
f. there is damage arising from collision, fire or freezing—which includes damage from extreme heat or cold, improper storage or water damage
Indemnities and liability
51. The Buyer warrants that he understands the regulations and laws regarding the safe and legal use of motorcycles and mopeds and certifies that he or anyone he permits to use the Vehicles holds the necessary licences and permissions necessary to use the Vehicles legally on the road and indemnifies the Seller against any and all claims that may arise from improper use of the Vehicles after he takes possession of them.
52. The Buyer warrants that he holds or will before the Vehicle is ridden, adequate insurance as required by law and indemnifies and holds harmless the Seller in respect of any claims arising from uninsured use of the Vehicles.
53. Subject as expressly provided in these Conditions above, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
54. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods have been delivered in accordance with the Contract.
55. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Sellers sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
56. Except in respect of death or personal injury caused by the Sellers negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
57. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Sellers obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Sellers reasonable control including without limitation Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, or any acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, and power failure or breakdown in machinery.
Insolvency of the Buyer
58. This clause applies if:
a. The Buyer makes voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
b. An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
c. the Buyer ceases, or threatens to cease, to carry on business; or
d. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
59. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
60. The Buyer’s right to possession shall cease if they, not being a company, become bankrupt or if they, being a Body Corporate, do anything, or fail to do anything which would entitle a Receiver to take possession of any assets or which would entitle any person to present a petition for winding-up.
61. Should the Buyer’s right of possession cease they will notify The Seller and immediately make the goods available for collection. The Seller may, for the purposes of recovery of the Goods, enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess them.
62. The Seller reserves the right to make a reasonable daily charge for the storage of the Buyer’s vehicle or vehicles.
63. The Seller may assign the benefits and burdens hereunder to any third party without the consent of the Buyer. The Buyer shall not assign the benefits and burdens hereunder to any third party without the consent in Writing of the Seller.
64. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party as its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
65. No waiver by the Seller of any breach of the Contract by the buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
66. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
67. Incoterms means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in the Contract, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
68. The singular shall include the plural and the male shall include the female or business entity as may be appropriate.
69. The Contract shall be governed by the laws of England and both parties agree to submit to the non- exclusive jurisdiction of the English Courts as regards any claim or matter arising under the Contract.