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Terms & Conditions

1. DEFINITIONS

1.1 In this Agreement, the following words and phrases shall have the following meanings:

“Agreement”	means this agreement, comprising these terms and conditions;
“Charges”	means the charges detailed in the Order Form;
“Design Templates”	means the dimensions and bus graphic design templates, available for download from the url: http://www.thebusbusiness.co.uk/Bus+line+drawings
“Intellectual Property Rights”	means copyright, database rights, patents, registered and unregistered design rights, registered and unregistered trade marks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same;
“Order Form”	means the document set out above;
“Specification”	means the specification document setting out the required appearance and functionality of the Vehicle prepared in accordance with the Design Templates and attached to the Order Form;
“Vehicle”	means the vehicle detailed in the Order Form;
“Warranties”	means the warranties detailed in Clause 13.1 and 13.2 below;
“Warranty Period”	means the period of time detailed in the Order Form.

2. BASIS OF AGREEMENT

2.1 Any estimate or quotation given by TBB in the Order Form is an invitation to treat only and is valid for a period of thirty (30) days only (unless previously withdrawn by TBB).

2.2 No binding Agreement shall be formed until TBB and the Client have both signed the Order Form.

2.3 By signing the Order Form, TBB and the Client agree to be bound by this Agreement.

3. MANUFACTURE OF VEHICLE

3.1 TBB hereby agrees to manufacture and modify the Vehicle in accordance with the Specification.

4. PROJECT MANAGEMENT

4.1 If specified in the Order Form, TBB and the Client shall each nominate an authorised representative who will be the prime point of contact and whose decisions will bind the parties for the purpose of this Agreement.

5. CLIENT CO-OPERATION

5.1 The Client shall co-operate with the provision of all materials information and documentation including any materials reasonably requested by TBB to enable TBB to manufacture and deliver the Vehicle.

6. CHANGES

6.1 If at any time the Client wishes to alter all or any part of the Specification then the Client shall provide TBB with a full written breakdown of such alterations and with such further information as TBB may reasonably require. TBB shall submit to the Client as soon as reasonably practicable a full written quotation for such alterations specifying what changes (if any) will be required to the Charges and the Specification.

6.2 Upon receipt of such quotation the Client may elect either:

• 6.2.1 to accept such quotation in which case this Agreement shall be amended in accordance therewith; or
• 6.2.2 to withdraw the proposed alterations in which case this Agreement shall continue in force unchanged, subject to Clause 6.4 below.

6.3 If the Client’s request for such alterations is subsequently withdrawn but results in a delay to the delivery of the Vehicle, TBB shall not be liable for such delay and shall be entitled to an extension of time for performing its obligations equal to the period of the delay.

6.4 Subject to Clause 6.5 below, TBB shall not be obliged to consider or make any alterations to the Vehicle save in accordance with the aforesaid procedure.

6.5 TBB reserves the right to make changes to the Specification which are required to allow the Vehicle to conform with any applicable safety or other statutory requirements.

7. CHANGES TO THE SPECIFICATION

7.1 If any alterations are made to the proposed Vehicle pursuant to Clause 6 above, TBB shall make appropriate modifications to the Specification to reflect such alterations. The provisions of this Agreement shall then apply to the Specification as so modified. The cost of such modifications shall be included in the quotation given under Clause 6 above.

8. CHARGES AND TERMS OF PAYMENT

8.1 It is a material condition of this Agreement that the Charges (or any instalment thereof) shall be paid by the Client strictly in accordance with the payment terms set out in the Order Form.

8.2 For the avoidance of doubt, in relation to the payment of the Charges, time for payment shall always be of the essence of this Agreement.

8.3 All Charges are exclusive of VAT which shall be payable by the Client in addition thereto.

8.4 TBB reserves the right to suspend the manufacture or delivery of Vehicle to the Client where any amounts are overdue under this Agreement until all such amounts have been paid in full.

8.5 The Client is not entitled by reason of any set-off, counterclaim, abatement or analogous deduction to withhold payment of any amount due to TBB.

8.6 Interest is payable on overdue accounts at the rate of eight percent (8%) per month over the Bank of England base rate from time to time, to run from the due date for payment until receipt by TBB of the full amount (including any accrued interest) whether before or after judgment.

8.7 Unless specified in the Order Form, the Charges may be increased by TBB to reflect any reasonable increase in labour and material costs.

9. DELIVERY OF VEHICLE

9.1 TBB shall deliver the Vehicle to the delivery location specified in the Order Form.

9.2 TBB shall use its reasonable endeavours to deliver the Vehicle on the date specified in the Order Form, if any, but time for delivery of the Vehicle is not of the essence and shall not be made so by the service of any notice.

9.3 If the Order Form specifies a time for delivery of the Vehicle, and TBB is prevented or delayed from performing any of its obligations under this Agreement by reason of any act or omission of the Client then, notwithstanding anything else contained in this Agreement the time for performing such obligation shall be extended by the period of such delay.

10. CLIENTS RESPONSIBILITIES

10.1 Following delivery of the Vehicle pursuant to Clause 9 above, it shall be the responsibility of the Client to ensure that:

• 10.1.1 an appropriate road fund licence is obtained and displayed in respect of the Vehicle;
• 10.1.2 the Vehicle is adequately insured for use on a public highway;
• 10.1.3 the Vehicle is properly registered with the Driver Vehicle Licensing Agency.

11. PASSING OF RISK

11.1 Risk of damage to or loss of the Vehicle shall pass to the Client:

• 11.1.1 in the case of a Vehicle which is to be delivered at TBB’s premises, at the time when TBB notifies the Client that the Vehicle is available for collection; or
• 11.1.2 in the case of a Vehicle to be delivered otherwise than at TBB’s premises, at the time of delivery or, if the Client wrongfully fails to take delivery of the vehicle, the time when TBB has tendered delivery of the Vehicle.

12. RETENTION OF TITLE

12.1 Notwithstanding delivery, the Vehicle shall remain the legal, equitable and beneficial property of TBB until the Client pays to TBB the agreed Charges for the Vehicle, in full (together with any accrued interest) and all other amounts owed by the Client to TBB in respect of any other contract.

12.2 Until property in the Vehicle has passed, the Client is in possession of the Vehicle in a fiduciary capacity and shall (or procure that any third party shall):

• 12.2.1 not sell, dispose of or otherwise part with possession of the Vehicle;
• 12.2.2 take proper care of the Vehicle and take all reasonable steps to prevent any damage to or deterioration to it;
• 12.2.3 keep the Vehicle fully and comprehensively insured for an amount which is no less than an amount equal to the Charges;
• 12.2.4 keep the Vehicle free from any charge lien or other encumbrance and store the Vehicle in such a way as to show clearly it clearly belongs to TBB;
• 12.2.5 notify TBB immediately upon the happening of any of the termination events set out in Clause 16.2 below; and
• 12.2.6 give TBB such information relating to the Vehicle as TBB may from time to time require.

12.3 In the event of termination pursuant to Clause 16 below, TBB reserves the right to repossess and resell the Vehicle to which it has retained title.

12.4 The Client grants an irrevocable right and licence to TBB and its employees and agents to enter the Client’s premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing the Vehicle to which it has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of this Agreement and is without prejudice to any accrued rights of TBB under this Agreement or otherwise.

13. WARRANTIES

13.1 Each party warrants and undertakes to the other that:

• 13.1.1 it has full power, capacity and authority and the absolute right to enter into this Agreement;
• 13.1.2 it has unrestricted rights to or under, all relevant patent rights, copyrights and all other Intellectual Property Rights and is entitled to use all know-how and confidential information necessary to enable it fully and effectively to perform this Agreement and where appropriate has complied and shall continue to comply with all of its obligations (including but not limited to royalty payments) undertaken as a condition of the grant of any such rights.

13.2 TBB warrants that:

• 13.2.1 in carrying out its obligations under this Agreement, it shall exercise reasonable skill and care;
• 13.2.2 during the Warranty Period, the Vehicle shall:
  • 13.2.2.1 appear, operate and function materially in accordance with the Specification; and
  • 13.2.2.2 be free from any material defects in design, substance and workmanship.

13.3 The Warranties are given by TBB subject to the following conditions:

• 13.3.1 TBB shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow TBB's instructions (whether oral or in writing), misuse, alteration or modification or repair of the Vehicle without TBB's approval;
• 13.3.2 TBB shall be under no liability as a result of the Clients failure to comply with its obligations under Clause 10 above;
• 13.3.3 TBB shall be under no liability under the Warranties (or any other warranty, condition or guarantee) if the total Charges payable under this Agreement have not been paid by the due date for payment;
• 13.3.4 the Warranties do not extend to parts, materials or equipment not manufactured by TBB, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to TBB;
• 13.3.5 any claim by the Client which is based on any breach of the Warranties shall be notified to TBB in writing within seven (7) days from the date of delivery of the Vehicle or (where the defect or failure was not apparent on reasonable inspection) from the date of discovery of the defect or failure;
• 13.3.6 the Warranties shall expire after expiry of the Warranty Period.

13.4 Subject as expressly provided in this Agreement, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

13.5 Where any valid claim in respect of the Vehicle which is based on any breach of the Warranties is notified to TBB in accordance with Clause 13.4 above, TBB shall be entitled to repair or replace the Vehicle (or the part in question) free of charge or, at TBB's sole discretion, refund to the Client the Charges (or a proportionate part of the Charges), but TBB shall have no further liability to the Client.

14. LIABILITY

14.1 Except in respect of death or personal injury caused by TBB's negligence or any liability imposed on TBB by Part I of the Consumer Protection Act 1987, the total liability of TBB under this Agreement shall be limited to complying its obligation under Clause 13.5 above.

14.2 TBB shall not be liable to the Client 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 this Agreement for any direct, indirect or consequential loss. In particular, TBB shall not be liable to the Client for the following types of financial loss:

14.3 loss of profits; loss of earnings; loss of business or goodwill; business interruption; even if even if TBB had notice of the possibility of the Client incurring such losses. TBB shall not be liable to the Client for the following types of anticipated or incidental losses: loss of anticipated savings; increase in bad debt; loss of sales or revenue; failure to reduce bad debt; reduction in the value of an asset, even if TBB had notice of the possibility of the Client incurring such losses.

14.4 TBB shall not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of TBB's obligations in relation to the Vehicle, if the delay or failure was due to any cause beyond TBB's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond TBB's reasonable control:

• 14.4.1 any act of God, explosion, flood, tempest, fire or accident;
• 14.4.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
• 14.4.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority;
• 14.4.4 import or export regulations or embargoes;
• 14.4.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of TBB or of a third party);
• 14.4.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
• 14.4.7 power failure or breakdown in machinery.

15. INDEMNITY

15.1 If any claim is made against TBB that the Vehicle infringes or that its use or resale infringes the Intellectual Property Rights of any third party, the Client shall indemnify TBB against all loss, damages, costs and expenses awarded against or incurred by TBB in connection with the claim, or paid or agreed to be paid by TBB in settlement of the claim, provided that:

• 15.1.1 the Client is given full control of any proceedings or negotiations in connection with any such claim;
• 15.1.2 TBB shall give the Client all reasonable assistance for the purposes of any such proceedings or negotiations;
• 15.1.3 except pursuant to a final award, TBB shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Client (which shall not be unreasonably withheld);
• 15.1.4 TBB shall do nothing which would or might vitiate any policy of insurance or insurance cover which TBB may have in relation to such infringement, and this indemnity shall not apply to the extent that TBB recovers any sums under any such policy or cover (which TBB shall use its best endeavours to do);
• 15.1.5 the Client shall be entitled to the benefit of, and TBB shall accordingly account to the Client for, all damages and costs (if any) awarded in favour of TBB which are payable by or agreed with the consent of TBB (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
• 15.1.6 without prejudice to any duty of TBB at common law, the Client shall be entitled to require TBB to take such steps as the Client may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Client is liable to indemnify TBB under this clause.

16. TERMINATION

16.1 On or at any time after the occurrence of any of the events in Clause 16.2 below, TBB may upon the provision of three (3) days written notice:

• 16.1.1 suspend the manufacture or delivery of the Vehicle; and/or
• 16.1.2 exercise its rights under Clause 17 below;

16.2 The termination events are:

• 16.2.1 the Client failing to pay the Charges (or any instalment thereof), which for the avoidance of doubt shall be treated by TBB as a material breach of a primary obligation by the Client;
• 16.2.2 the Client being in breach of any other obligation under this Agreement;
• 16.2.3 the Client passing a resolution for its winding up or a court of competent jurisdiction making an order for the Client’s winding up or dissolution;
• 16.2.4 the making of an administration order in relation to the Client or the appointment of a receiver over or an encumbrancer taking possession of or selling an asset of the Client; and
• 16.2.5 the Client making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally.

17. EFFECTS OF TERMINATION

17.1 Upon termination of this Agreement, any indebtedness of the Client to TBB shall become immediately due and payable and TBB shall be relieved of any further obligation to supply the Vehicle to the Client.

17.2 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

18. MISCELLANEOUS

18.1 This Agreement will be governed by and construed according to the Laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.

18.2 This Agreement may be amended or supplemented only by a writing signed on behalf of both parties. No purchase order, invoice or similar document will affect this Agreement even if accepted by the receiving party.

18.3 No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in writing signed on behalf of both parties.

18.4 If a court or other authority of competent jurisdiction finds any term, condition or other provision hereof or of the Agreement to be invalid or unenforceable as applied to any person or circumstance, the parties hereto agree to substitute for the invalid and unenforceable provision a valid provision that most closely approximates its intent and economic effect, and the other provisions hereof or thereof, and the same provision as applied to other persons or circumstances, shall remain in full force and effect.

18.5 This Agreement constitutes the entire agreement between the parties, and, no amendment, deletion or addition thereto shall be valid unless made in writing and signed by the party to be charged therewith or its duly authorised representative.

18.6 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties Act) 1999 to enforce any of its terms.

18.7 All notices, consents, requests, demands, approvals, authorisations, and other communications required or permitted hereunder shall be in writing and shall be deemed given when (i) delivered personally, (ii) sent by registered or certified mail, postage prepaid, return receipt requested, and in each case addressed to the appropriate address as provided in this Agreement, or to such other address as the receiving party may have provided for purposes of notice hereunder.

18.8 The parties to this Agreement are independent contractors. There is no relationship of principal to agent, master to servant, employer to employee or franchisor to franchisee between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.

18.9 The section headings hereof are provided for convenience only and shall have no effect in the application or interpretation hereof.