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Terms and Conditions of Sale

Jan 6, 2020

DEFINITIONS

Seller Fotheringham Equestrian Limited (Fotheringham Equestrian), dba Fotheringham Horseboxes

Buyer the person or firm who purchases the Goods from Fotheringham Equestrian.

Contract the contract between the Seller and the Buyer for the sale and purchase of Goods in accordance with the terms and conditions set out in this document.

Goods the vehicle or trailer (or any parts) set out in the Order.

Order the Buyer’s order for the Goods as set out in the purchase order.

  1. PREVAILING CONDITIONS

The Contract between the Seller and the Buyer constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.

  1. ACCEPTANCE

No Contract will be created between the Seller and the Buyer until the Seller has dispatched written confirmation of its acceptance of the Buyer’s order. Quotations issued by the Seller are not offers capable of acceptance so as to make a binding Contract.

  1. GOODS

3.1 The Goods are described in the Buyer’s Order.

3.2 the Seller reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

  1. DELIVERY

4.1 Delivery of the Goods shall be made by the Buyer collecting the Goods from the Seller’s premises within 14 days of the Seller notifying the Buyer that the Goods are ready for collection. The Goods will be delivered to the Customer only where agreed by the Seller and at the Buyer’s cost.

4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. the Seller shall not be liable for any delay caused by an event outside of its control. In the event of such a delay, the Seller shall notify the Buyer and agree an alternative date.

4.3 If 14 days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, the Seller may give notice cancelling the Contract and any sums paid by the Buyer shall be returned less a sum equivalent to a reasonable administration fee, any damages, loss or expenses which the Seller may have suffered or incurred by reason of the Buyer’s default.

  1. WARRANTY 

5.1 New Build vehicles — The Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve (12) months from the date of delivery. 

5.2 The above Warranty is given by the Seller subject to the following conditions:

5.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

5.2.2 The Goods shall be used exclusively for the purposes for which they were sold and not for Hire and Reward or anything other than Personal and Leisure purposes, unless Fotheringham Equestrian has built or equipped the vehicle for that specific purpose;

5.2.3 any faulty Goods or part thereof subject to a claim under this Warranty shall be returned to the Seller, or a workshop approved by the Seller, at the cost of the Buyer;

5.2.4 recovery costs are excluded from this Warranty;

5.2.5 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, damage caused by oil leaks, issues caused by frost, failure to follow the Seller’ s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without Fotheringham’ s written approval;

5.2.6 the Buyer shall give written notice to the Seller of any defect in the Goods or their failure to correspond with specification within seven (7) days of discovery, and in any event within 30 days of delivery. 

5.2.7 where a valid claim in respect of the Goods is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller shall, subject to its own inspection, repair or replace the Goods (or the part in question) free of charge or, at the Seller’ s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer;  

5.2.8 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 had been delivered in accordance with the Contract.

5.3 Pre-owned vehicles — the Seller shall repair, free of charges for parts and labour, any major defect in the Goods which becomes apparent within 30 days of delivery, or 1,000 miles, whichever comes sooner, providing the Goods are returned to the Seller’s premises, or a workshop approved by the Seller, within that period of time, and mileage.

5.4 This Warranty covers the cost of repair or replacement of the following: 

5.4.1 Engine, transmission, fuel system, cooling system, gearbox, steering, suspension, non-frictional clutch and brake parts, essential electrical wiring.

5.4.2.1 “Essential” shall have the meaning of being absolutely necessary, or extremely important, in ensuring the vehicle runs, is legal and safe to drive.

5.5. the Seller shall be under no liability in respect of any defect arising from:

5.5.1 Fair wear and tear, accidental or wilful damage, negligence, abnormal working conditions, damage caused by oil leaks, issues caused by frost, failure to follow the Seller’ s instructions (whether oral or in writing), misuse, consumable parts, accessories, air conditioning, batteries, bulbs, wheels and tyres, brake discs and brake pads, cosmetic repairs to paintwork, the vehicle’s interior, alteration or repair of the Goods without the Seller’ s written approval. 

5.6 The above Warranty is provided subject to the following conditions:

5.6.1 upon request the Seller will permit the Buyer to inspect the Goods for the purpose of assessing whether they are of satisfactory quality or not. The Buyer will be deemed to have carried out a reasonable examination of the Goods before the Contract is made, whether or not they have actually taken the opportunity to do so.

5.6.1.1 if the Goods is a vehicle of 7.5 tonne MAM or more, to ensure the Buyer is fully aware of the implications of purchasing, owning, and maintaining this type of vehicle, the Seller will not sell the vehicle to the Buyer unless the Buyer instructs a recognised horsebox mechanic or engineer to carry out a pre-sale inspection.

5.6.2 the Buyer shall give written notice to the Seller of any defect in the Goods within seven (7) days of discovery and in any event within 30 days of delivery. the Seller shall, subject to its own inspection, and at its sole option and discretion, repair or replace any defective Goods or part thereof;

5.6.3 if the Buyer does not notify the Seller as required above, 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 had been delivered in accordance with the Contract;

5.6.4 any faulty Goods or part thereof subject to a claim under this Warranty shall be returned to the Seller, or a workshop approved by the Seller, at the cost of the Buyer; 

5.6.5 recovery costs are excluded from this Warranty;

5.6.6 no repairs shall be carried out under this Warranty unless and until the Seller provides written authorisation and no liability shall exist in respect of parts supplied, repairs carried out, or any other claim unless in accordance with the timing and procedures set out in this Warranty;

5.6.7 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;

5.6.8 the Goods shall be used exclusively for the purposes for which they were sold and not for Hire and Reward or anything other than Personal and Leisure purposes;

5.6.9 the Buyer acknowledges that the Goods are sold subject to such wear and tear as is reasonable for a vehicle of its age, type, usage and mileage;

5.6.10 the Buyer further acknowledges that in the case of vehicles on consignment, or sold on behalf of the owner, the Seller acts as an agent and is not in a position to issue a refund. 

 

5.7. the Seller shall, where possible, ensure that the unexpired portion of the manufacturer’s warranty (if any) is transferred to the Buyer, however, if the Goods are not manufactured by the Seller, liability in respect of any defect in workmanship or materials of the Goods shall be limited to such rights against the manufacturer as the Seller may have in respect to those Goods.

5.8. This Warranty provided by the Seller is non-transferable and shall not be extended under any circumstances.

  1. LIABILITY

6.1 Nothing in these conditions shall limit or exclude the Seller’s liability for (a) death, personal injury arising from its negligence or the negligence of its employees, agent or subcontractors; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be restricted, excluded or limited by law.

6.2 Subject to condition 6.1: (a) the Seller does not sell the Goods subject to any implied warranty or condition or any duty at common law, statute or otherwise, and all such warranties and conditions are hereby expressly excluded to the fullest extent permitted by law, save that the Seller warrants that the goods shall conform with their description on the Order; (b) the Seller does not sell the goods subject to any warranty or condition concerning the fitness of the Goods for a particular purpose; (c) the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including 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 (d) the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with any this Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the purchase price of the Goods.

6.3 In particular, the Seller shall not be liable for any loss or damage suffered whatsoever as a result of (a) any inaccuracies shown in vehicle odometers; (b) animals that panic or misbehave or jump breast bars during transit or whilst inside the Goods; (c) any design or manufacturing faults in the Goods; (d) driver errors; (e) recovery costs; (f) Goods that are loaded over the maximum permitted gross vehicle weight; (g) the driver’s failure to hold the correct licence for the Goods; (h) the driver’s failure to check oil, water, vehicle lights and air lines prior to commencing any journey; (i) deterioration, manufacture faults, or any other failure following expiry of the 90 day warranty period; (j) any person standing behind the Goods’ ramp whilst in operation; (k) any inaccuracies published on the Seller’s website; or (l) any person’s failure to ensure they fully understand the Goods’ equipment and functions.

  1. TITLE AND RISK

7.1 The risk of the Goods shall pass to the Buyer on completion of delivery.

7.2 Title to the Goods shall not pass to the Buyer until payment in full for the Goods has been received.

  1. PRICE AND PAYMENT

8.1 The price of the Goods shall be the price set out in the Order, including where applicable, VAT and delivery.

8.2 Payment for the Goods is payable prior to the delivery of the Goods and within 14 days of the Seller notifying that the Goods are ready for collection.

8.3 If payment is to be made by cheque, the Buyer must notify the Seller and the cheque must be paid to the Seller at least 5 banking days in advance of delivery.

8.4 Where payment is delayed beyond the date specified for payment pursuant to condition 8.2, the Seller may give notice cancelling the Contract in accordance with clause 4.3.

8.5 Time of payment shall be of the essence.

  1. TERMINATION

9.1 the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if (a) the Buyer fails to make any payment which has become due under the terms of this Contract; (b) the Buyer fails to accept delivery of the Goods in accordance with clause 4.1; (c) the Buyer 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 section 123 of the Insolvency Act 1986; (d) the Buyer compounds or makes any voluntary arrangement with its creditors or an application is made to court or an order is made for the appointment of an administrator or (being an individual or firm) becomes the subject of a bankruptcy petition or (being a company) goes into liquidation (otherwise for the purposes of amalgamation or reconstruction); (e) a receiver is appointed over any of the property or assets of the Buyer; (f) The Buyer ceases or threatens to cease to carry on business; or (g) the Seller reasonably believes that any of the events mentioned above are about to occur in relation to the Buyer and notifies the Buyer accordingly.

9.2 If any of the provisions of this Clause applies then (without prejudice to any other right or remedy available to the Seller) the Seller shall be entitled to cancel this Contract or suspend delivery under this Contract and forfeit any deposit paid by the Buyer without any liability to the Buyer and if any goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.

  1. PERSONAL DATA

10.1 Any disclosure of personal information shall be held and used in accordance with the Data Protection Act 1998.

10.2 The Buyer consents to such data being kept and used for purposes such as informing the Buyer of offers.

  1. NOTICES

11.1 Any notice given to a party under or in connection with this Contract shall be in writing, addressed to that party at the address shown on the Order and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.

11.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.

  1. 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 condition 11 shall not affect the validity and enforceability of the rest of the contract.

  1. WAIVER

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  1. THIRD PARTY RIGHTS

A person who is not a party to the contract shall not have any rights to enforce its terms.

  1. ARBITRATION

Any dispute or difference arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the Scottish Arbitration Centre on the written application of either party. The seat of arbitration shall be Scotland. The language to be used in the arbitral proceedings shall be English.

  1. GOVERNING LAW

This Contract shall be governed by Scottish law and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with the laws of Scotland.

  1. JURISDICTION

Each party irrevocably agrees that the courts of Scotland shall have the exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract.