Terms of Business
1.1 “Company” shall mean Portech Performance Limited its successors and assigns or any person acting on behalf of and with the authority of Portech Performance Limited.
1.2 “Owner” shall mean the person or entity described as such on the invoices, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall include any person acting on behalf of and with the authority of such person or entity.
1.3 “Services” shall mean all Services supplied by the Company to the Owner and where the context so permits shall include any supply of Parts as hereinafter defined (where the context so permits ‘Parts’ or ‘Services’ shall be interchangeable for the other) and all such Services shall be described on the invoices, quotation, work authorisation or any other forms as provided by the Company to the Owner.
1.4 “Parts” shall mean all Parts supplied by the Company to the Owner either separately, or as part of the Services and where the context so permits shall include the supply of Services as defined above (where the context so permits ‘Services’ or ‘Parts’ shall be interchangeable for the other).
1.5 “Price” shall mean the cost of the Services as agreed between the Company and the Owner subject to clause 4 of this contract.
2. Application of these terms and conditions to consumers
2.1 Where the Owner buys Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by the Company from the Owner for the supply of Services and/or the Owner’s acceptance of Services supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Owner has entered into this agreement, the Owners shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Owner the terms and conditions are irrevocable and can only be amended with the written consent of the Company.
4. Price And Payment
4.1 At the Company’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Company to the Owner in respect of the Services supplied; or
(b) as at the date of delivery of the Parts according to the Company’s current price list; or
(c) the Company’s estimated Price (subject to clause 4.2) which shall not be deemed binding upon the Company as the actual Price can only be determined upon completion of the Services. The Company undertakes to keep the Owner informed should the actual Price look likely to exceed the original estimate; or
(d) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Owner shall accept the Company’s quotation within thirty (30) days of issue.
4.2 The Company reserves the right to change the Price in the event of a variation to the Company’s estimate or quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, for additional Services required due to difficulties beyond the control of the Company such as added issues that arise, once the Services have commenced than was originally indicated by the Owner, resulting in increases to the Company in the cost of materials and labour) will be charged for on the basis of the Company’s estimate or quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Company’s sole discretion a deposit may be required.
4.4 Time for payment for the Services shall be of the essence, the Price will be payable by the Owner on the date/s determined by the Company, which may be:
(a) on completion of the Services; or
(b) before undertaking the Services; or
(c) by instalments / progress payments in accordance with the Company’s payment schedule; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Owner by the Company.
4.5 The Company reserves the right to invoice the Owner for Labour and any, or all, Parts separately that are pertaining to the Services. Any such separate invoices shall be deemed to be accepted by the Owner as the complete cost of the Services, and payment shall be due on the date stated therein.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit / debit card (plus a surcharge of up to 2.00% of the Price), or by any other method as agreed to between the Owner and the Company.
4.7 VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Services
5.1 At the Company’s sole discretion delivery of the Services shall take place when:
(a) the Company provides the Services at the Company’s address; or
(b) the Company provides the Services at the Owner’s nominated address.
5.2 Where the Company is to provide any Services at the Owner’s nominated address then the Owner shall be liable for all costs incurred by the Company from the time they depart from, and until they return to, their normal place of work (including, but not limited to, mileage and time calculated at the Company’s standard rates and any Parts purchased for the Services).
5.3 Unless specified otherwise by the Company, the costs of delivery are included in the Price.
5.4 Delivery of any Services to a third party nominated by the Owner is deemed to be delivery to the Owner for the purposes of this agreement.
5.5 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver the Services (or any of them) promptly or at all where due to circumstances beyond the control of the Company.
6.1 If the Company retains ownership of any Parts nonetheless, all risk for those Parts passes to the Owner on delivery.
6.2 Where the Owner expressly requests the Company to leave Parts outside the Company’s premises for collection or to deliver the Parts to an unattended location then such Parts shall be left at the Owner’s sole risk and it shall be the Owner’s responsibility to ensure the Parts are insured adequately or at all.
6.3 If any of the Parts are damaged or destroyed following delivery but prior to ownership passing to the Owner, the Company is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.4 The Company shall not be liable for the loss of or damage to the vehicle, its accessories or contents while garaged or being driven in connection with the work authorised unless caused by the negligence of the Company or the Company’s employees.
6.5 The Owner agrees that any repair work carried out on the vehicle and/or the storage of the vehicle at the Company’s premises is done so at the Owner’s own risk and releases to the full extent permitted by law the Company, its employees and agents from all claims and demands of any kind and from all liability which may arise in respect of any accident, damage or injury occurring to any person or property arising out of the storage and/or repair of the vehicle.
6.6 In the event that the Owner believes that the Company has scratched the vehicle, or there is any other alleged defect or damage, during the installation process of the Services, the Owner shall within twenty-four
(24) hours of delivery (time being of the essence) notify the Company of any alleged scratch, defect or damage. The Owner shall afford the Company an opportunity to inspect the vehicle within a reasonable time following delivery. If the Owner fails to comply with clause 6.7, the vehicle shall be presumed to be free from any scratch, defect or damage.
7.1 It is the intention of the Company and agreed by the Owner that ownership of the Parts shall not pass until:
(a) the Owner has paid all amounts owing for the particular Parts; and
(b) the Owner has met all other obligations due by the Owner to the Company in respect of all contracts between the Company and the Owner.
7.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Parts shall continue.
7.3 It is further agreed that:
(a) where practicable the Parts shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Owner are met; and
(b) until such time as ownership of the Parts shall pass from the Company to the Owner the Company may give notice in writing to the Owner to return the Parts or any of them to the Company. Upon such notice the rights of the Owner to obtain ownership or any other interest in the Parts shall cease; and
(c) the Company shall have the right of stopping the Parts in transit whether or not delivery has been made; and
(d) if the Owner fails to return the Parts to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Owner, or any premises as the invitee of the Owner, where the Parts are situated and take possession of the Parts; and
(e) the Owner is only a bailee of the Parts and until such time as the Company has received payment in full for the Parts then the Owner shall hold any proceeds from the sale or disposal of the Parts on trust for the Company; and
(f) the Owner shall not deal with the money of the Company in any way which may be adverse to the Company; and
(g) the Owner shall not charge the Parts in any way nor grant nor otherwise give any interest in the Parts while they remain the property of the Company; and
(h) the Company can issue proceedings to recover the Price of the Parts sold notwithstanding that ownership of the Parts may not have passed to the Owner.
8. Owner’s Responsibility & Acknowledgment
8.1 The Owner acknowledges and accepts that the supply of Parts for accepted orders may be subject to availability and if, for any reason, Parts are not or cease to be available, the Company reserves the right to vary the Price with alternative Parts as per clause 4.2. The Company also reserves the right to halt all Services until such time as the Company and the Owner agree to such changes.
8.2 The Owners acknowledges that the Company can only provide its Parts on a vehicle in its current state as supplied to the Company therefore the Company shall not accept any responsibility for the workmanship of any third party that has worked on a Owner’s vehicle prior to Services being undertaken by the Company (including, but not limited to, poor paintwork or repairs).
8.3 The Company, its employees, agents or contractors may test drive or carry out tests of the vehicle at the Company’s discretion and may, if requested by the Owner, collect or re-deliver the vehicle where nominated by the Owner and the Company will not be liable to the
Owner for any damage which occurs to or is caused by the vehicle during such driving, testing, collection or delivery unless it arises from the reckless or wilful conduct of the Company, its employees, agents, or contractors.
8.4 The Owner acknowledges and agrees that further terms and conditions will apply to the Owner in the event a hire/loan Vehicle is required from the Company.
8.5 Where the Owner has supplied materials for the Company to complete the Services, the Owner acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Company shall not be responsible for any defects in the Services, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Owner.
8.6 Where the Owner has left a vehicle with the Company for repair, servicing, restoration, or modification or for the Company to perform any other Service in relation to the vehicle, it shall be at the sole risk of the Owner. The Company shall not be liable for any loss or damage to any vehicle whilst in the care of the Company, it shall be the responsibility of the Owner to ensure the vehicle is adequately insured, or at all (including but not limited to, the perils of accident, fire, theft and burglary and all other usual risks) whilst stored on the Company’s premises.
8.7 The Owners acknowledges that it is the Owner’s responsibility to remove all personal/valuable items from the vehicle prior to the Company carrying out their Services. The Company shall not liable in the event of any apparent loss or damage to personal/valuable items left in the vehicle.
9. Insurance Claims
9.1 If the Owner has insurance or other contractual arrangements for the payment of charges due under this contract, this will not affect the Owner’s personal liability to pay all charges due under this contract, except that the Owner’s liability will be reduced pro-rata to the extent that payments are made to the Company from other such sources. The Owner also agrees that they shall be liable and make payment when due for any insurance excess where necessary.
9.2 Any work undertaken which is part of an insurance claim is undertaken with the understanding that should the claim be declined, or payment of the claim delayed, the Owner is liable for payment of the full Price.
10. Workmanship and Parts Warranty
10.1 Subject to the conditions of warranty set out in clause 10.2 the Company warrants that if any defect in any workmanship of the Company becomes apparent and is reported to the Company within the earlier of three (3) months of the date of delivery or 5,000 miles (time being of the essence) then the Company will remedy the workmanship.
10.2 The conditions applicable to the warranty given by clause 10.1 are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Owner to properly maintain any Parts; or
(ii) failure on the part of the Owner to follow any instructions or guidelines provided by the Company; or
(iii) any use of any Parts otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Parts after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
(v) fair wear and tear, any accident or act of God.
10.3 For Parts not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Parts. Whilst the Company shall honour such warranty the Company shall not be bound by nor responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Parts.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
11.2 If the Owner defaults in payment of any invoice when due, the Owner shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
11.3 Without prejudice to any other remedies the Company may have, if at any time the Owner is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Services to the Owner and any of its other obligations under the terms and conditions. The Company will not be liable to the Owner for any loss or damage the Owner suffers because the Company exercised its rights under this clause.
11.4 If any account remains overdue after thirty (30) days then an amount of ₤20.00 shall be levied as an administration fee and shall be levied for each month that the account remains overdue, which sums shall become immediately due and payable.
12. Security And Charge
12.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) where the Owner is the owner of land, realty or any other asset capable of being charged, the Owner agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Owner agrees that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Owner shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Owner agrees to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Owner’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 The Company may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. On giving such notice the Company shall repay to the Owner any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Owner cancels delivery of Services the Owner shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.
14. Data Protection Act 1998
14.1 The Owner and the Guarantor/s (if separate to the Owner) authorises the Company to:
(a) collect, retain and use any information about the Owner, for the purpose of assessing the Owner’s creditworthiness or marketing products and services to the Owner; and
(b) to disclose information about the Owner, whether collected by the Company from the Owner directly or obtained by the Company from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing a default by the Owner on publicly accessible credit reporting databases.
14.2 The Company may also use information about the Owner to monitor and analyse its business. In this connection the Owner authorises the Company to disclose personal information to agents or third parties engaged by the Company.
14.3 The Owner consents to the transfer of information outside of the European Economic Area for the purposes listed above.
14.4 Where the Owner is an individual the authorities under (clause 14.1) are authorities or consents for the purposes of the Data Protection Act 1998.
14.5 The Owner shall have the right to request the Company for a copy of the information about the Owner retained by the Company and the right to request the Company to correct any incorrect information about the Owner held by the Company.
15. Unpaid Company’s Rights
15.1 Where the Owner has left any item with the Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Company is in possession of the item;
(c) a right to sell the item.
15.2 The lien of the Company shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
16.1 The Owner hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Owner by the Company and the Owner acknowledges that the Services are bought relying solely upon the Owner’s skill and judgment.
16.2 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.3 These terms and conditions and any contract to which they apply shall be governed by the laws of England and Wales and are subject to the jurisdiction of the courts of England and Wales.
16.4 The Company shall be under no liability whatever to the Owner for any indirect loss and/or expense (including loss of profit or goodwill) suffered by the Owner or any third party arising out of a breach by the Company of these terms and conditions.
16.5 In the event of any breach of this contract by the Company the remedies of the Owner shall be limited to damages and the Company’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Services, or for any breach of these terms and conditions, or of any duty owed to the Owner in connection with them shall be limited to the amount of the Price.
16.6 The Owner shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Owner by the Company.
16.7 The Company may license or sub-contract all or any part of its rights and obligations without the Owner’s consent.
16.8 The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Owner of such change. Except where the Company supplies further Services to the Owner and the Owner accepts such Services, the Owner shall be under no obligation to accept such changes.
16.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.