1.1. In these Terms and Conditions:
"Act" means The Contracts (Rights of Third Parties) Act 1999;
"Associated Companies" means in relation to either Party, a subsidiary, a holding company or a subsidiary of any such holding company and, in respect of McLaren, also includes McLaren Technology Group Limited, its subsidiaries or holding companies, (in each case as these terms are defined in section 1159 of the Companies Act 2006 as amended from time to time);
"Authorised Representative" means a manager or director of McLaren or the Customer, as the case may be;
"Business Day" means any day (other than a Saturday or a Sunday) on which banks are open in the City of London for the transaction of normal banking business;
"Claims" means all claims whether known or unknown to the Parties, whether contemplated or not, and whether or not presently known to the law;
"Customer" means the person named on the Order issued/received by McLaren;
"Contract" means these Terms and Conditions and the Order;
"Delivery" means delivery of the Goods and/or provision of the Services by McLaren to the Customer as set out in the Order, unless otherwise agreed in writing in accordance with Clause 6.1 and references to "deliver", "deliveries" or "delivered" shall be construed accordingly;
"Employees" means employees, officers and contractors;
"Goods" means all goods which are supplied to the Customer by McLaren under any Contract between them;
"Intellectual Property Rights" means any intellectual property rights including (without limitation) copyright, design rights, know-how, patents, trademarks, domain names, social networking pages or trade secrets, wherever in the world, enforceable and whether registered or not or registerable or not, including applications to register and all rights to apply for the same;
"McLaren" means McLaren Automotive Limited, a company incorporated in England and Wales (registered company number: 01967717), whose registered office address at McLaren Technology Centre, Chertsey Road, Woking, Surrey GU21 4YH;
"Order" means the document(s) which identify/ies, amongst other things, the Customer, McLaren, the Specification, the Price and any Special Terms;
"Parties" means McLaren and the Customer, and "Party" shall mean any one of them;
"Price" means McLaren’s quoted price for the Goods and/or Services or, where no price has been quoted, the price listed in McLaren's published price list current at the date of Delivery;
"Special Terms" means the terms listed on the Order which apply in addition to the Terms and Conditions. In the event of any conflict or inconsistency between the Terms and Conditions and the Special Terms, the Special Terms shall prevail;
"Specification" means the specification for the Goods and/or Services as listed on the Order;
"Terms and Conditions" means McLaren’s terms and conditions set out in this document which govern the sale and purchase of the Goods and/or the provision of the Services; and
"writing" includes emails, facsimile, transmissions and other comparable means of communication.
1.2. Any reference in these Terms and Conditions to any provision of a statute or statutory instrument shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
2.1. McLaren shall sell and the Customer shall purchase the Goods and/or receive the Services in accordance with the Contract. By placing an order or receiving a quotation for the Goods and/or Services, the Customer shall be deemed to have accepted these Terms and Conditions, which shall govern the supply of the Goods and/or Services to the exclusion of any other terms and conditions.
2.2. No variation to these Terms and Conditions shall be binding unless agreed in writing and in advance by an Authorised Representative of both Parties.
2.3. McLaren's Employees or agents are not authorised to make any representations concerning the Goods and/or Services unless confirmed by McLaren’s Authorised Representative in writing. In agreeing to these Terms and Conditions, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed.
2.4. McLaren shall not be liable for any advice given by McLaren or its Employees or agents to the Customer or its Employees or agents as to the application, use or otherwise of the Goods and/or Services unless such advice is confirmed in writing by or on behalf of McLaren’s Authorised Representative.
2.5. Nothing in this Clause 2 shall exclude any liability of McLaren for representations made fraudulently or any misrepresentations as to a fundamental matter made by McLaren or the Customer.
3. Formation of Contract and Specification
3.1. The quantity and description of the Goods and/or Services shall be as set out or referred to in the Order. The Customer is responsible for ensuring the accuracy of the terms of the Order.
3.3. A quotation by McLaren does not constitute an offer and McLaren reserves the right to withdraw or revise any quotation at any time prior to McLaren's acceptance of the Order.
3.4. The descriptions and illustrations contained in McLaren’s catalogues, price lists, websites and other leaflets or descriptive matter produced by McLaren or on McLaren’s behalf are not binding on McLaren and are given by way of identification only. In entering to the Contract, the Customer agrees that it has not relied on, and waives any claim for breach of, any representations that may arise from such documentation.
3.5. McLaren reserves the right to make any changes to the Specification.
3.6. No Order which has been accepted by McLaren pursuant to Clause 3.2 may be cancelled by the Customer except with the agreement in writing of McLaren’s Authorised Representative and on the condition that the Customer shall indemnify McLaren in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by McLaren as a result of such cancellation.
3.7. Any typographical, clerical or other error or omission in any documentation issued by McLaren may be corrected by McLaren without liability on the part of McLaren.
3.8. The Customer may not assign the Order (or any part thereof) to any other person.
4.1. The Price of the Goods and/or Services shall be the Price specified on the Order. The Customer shall pay the Price in the currency stated in the Order.
4.2. McLaren reserves the right, by giving notice to the Customer at any time before Delivery, to increase the Price to reflect any increase in the cost to McLaren which is due to any factor beyond the control of McLaren including (without limitation) alterations in taxation, duties, currency fluctuations, freight, shipping, any change of delivery dates, quantities or specifications of the Goods and/or Services which are requested by the Customer, or any delay caused by any instructions of the Customer, or failure of the Customer to give McLaren adequate information or instructions.
4.3. The Price is exclusive of value added tax, withholding tax and all other taxes and duties whenever incurred (apart from corporation taxes referable to income or capital gains of McLaren), which shall be payable by the Customer, whether or not known or identified by a Party before or after the Contract.
4.4. The Customer shall be responsible for all international and domestic duties, taxes and shipping, with no deduction for any service or any other charges or fees by any bank or any other entity, whether or not known or identified by a Party before or after the Contract.
4.5. The Customer shall indemnify McLaren against all actions, expenses, claims, fines, liabilities, costs and demands incurred by McLaren arising out of any failure by the Customer to pay in full any sums arising pursuant to this Clause 4.
5.1. McLaren shall be entitled to invoice the Customer for the Price or part thereof at any time. The Customer shall pay the Price in full in accordance with the Contract notwithstanding that Delivery shall not have taken place and title to the Goods shall not have passed to the Customer. The Customer shall not be entitled to make any deduction from such payment or any other fees owed to McLaren nor shall the Customer exercise any right of set-off or contribution howsoever arising.
5.3. The time of payment of the Price shall be of the essence.
5.4. If the Customer fails to make any payment on the due date, without prejudice to any other right or remedy available to McLaren, McLaren shall (at its option) be entitled to:
5.4.1. treat the Contract between McLaren and the Customer as repudiated by the Customer and suspend Delivery of the Goods and/or provision of the Services to the Customer and, if applicable, claim damages from the Customer and charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of eight per cent (8%) per annum above the Bank of England's base rate from time to time, until payment in full is made; or
5.4.2. affirm the contract, claim damages from the Customer and charge the Customer interest (in accordance with Clause 5.4.1).
5.5.1. the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order, (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or passes a resolution for its voluntary winding up or has a petition for its compulsory winding up presented against it;
5.5.2. an encumbrance, takes possession of, or a receiver or administrative receiver is appointed to, any of the property assets of the Customer;
5.5.3. the Customer ceases, or threatens to cease, to carry on business; or
5.5.4. McLaren reasonably apprehends that any of the events mentioned above are about to occur in relation to the Customer or any other matter which in the opinion of McLaren may prejudice its rights against the Customer,
(without prejudice to any other right or remedy available to McLaren) McLaren shall be entitled to cancel the Contract or suspend any further Deliveries under a Contract without any liability to the Customer, and, if the Goods have been delivered and/or the Services have been provided in full or in part but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
6.1. Subject to the Price having been paid in full in accordance with Clause 5.2, Delivery of the Goods and/or the provision of the Services shall be as set out in the Order and shall be at any time, unless otherwise agreed by McLaren in writing.
6.2. Any dates quoted for Delivery of the Goods and/or provision of the Services are approximate only. McLaren shall use its reasonable endeavours to deliver on the quoted dates but shall not be liable for any loss, cost, damages, charges or expenses caused, directly or indirectly, by delay in Delivery of the Goods and/or provision of the Services.
6.3. If the Customer fails to take Delivery of the Goods within seven (7) days of the Delivery date notified to it by McLaren or fails to give McLaren adequate Delivery instructions at the time stated for Delivery (otherwise than by reason of any event of force majeure), without prejudice to any other right or remedy available to McLaren, McLaren may at its option:
6.3.1. store the Goods, at the Customer’s risk, until actual Delivery and charge the Customer for the reasonable costs (including handling and insurance) of storage; or
6.3.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) and: (i) where the Price and all other sums owed have been paid by the Customer and McLaren has received such sums owing, account to the Customer for any excess over the Price under these Terms and Conditions or (ii) charge the Customer for any shortfall below the Price under these Terms and Conditions.
McLaren shall, at its option, repair or replace any Goods that do not conform with the Specification if the Customer gives notice in writing of the relevant defects: (i) in the case of a defect that is apparent on normal visual inspection, within five (5) Business Days of Delivery; and (ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent. If the Customer has not given notice of any defects in the Goods within the relevant time period, the Customer shall be deemed to have accepted the Goods.
The risk of loss and damage to the Goods shall pass to the Customer immediately upon Delivery.
9.1. Title to the Goods shall not pass to the Customer until such time as either (i) the Customer shall have paid to McLaren the Price for all Goods sold by McLaren to the Customer under any and all Contracts between them or (ii) McLaren shall have written to the Customer notifying the Customer that title to the Goods has passed to the Customer.
9.2. Until title to the Goods passes to the Customer in accordance with Clause 9.1, the Customer shall carefully store the Goods in such a way as to enable them to be identified as the property of McLaren and keep them insured against all loss or damage howsoever caused at its own expense.
9.3. The Customer shall not attach the Goods to any real property without the prior written consent of McLaren.
9.4. McLaren shall be entitled to recover payment for the Goods notwithstanding that title to the Goods has not passed from McLaren.
9.5. In the ordinary course of its business, the Customer may:
9.5.1. process the Goods in such fashion as it wishes and/or incorporate the Goods in or with any other product or products; and
9.5.2. sell the Goods to any third party as principal but not as agent for McLaren.
10.1. In the course of the supply of the Goods and/or provision of the Services, McLaren may collect certain personal information about the Customer including personal details and financial details. McLaren will use this information for purposes including supplying the Goods and/or Services, processing payment for such Goods and/or Services and communicating with the Customer in relation to the Goods and Services provided..
10.3. By entering into the Contract, the Customer acknowledges that it has read and understands the provisions of this Clause 10 and that the Customer agrees that McLaren may collect, use, process and disclose the Customer's personal information as described.
10.4. The Customer should contact McLaren if it has any questions or concerns about how McLaren will process, share and store the Customer's personal information or if the Customer wishes to exercise its right to access, modify, object to the use of or request the deletion of its personal information. If at any time the Customer no longer wishes to receive such communications from McLaren, the Customer should contact McLaren in writing at Client Services, McLaren Automotive Limited, McLaren Technology Centre, Chertsey Road, Woking, Surrey, GU21 4YH.
11. Intellectual Property Rights and Publicity
11.1. All Intellectual Property Rights in the Goods and/or the Services shall belong to McLaren and/or their licensor (as the case may be). The Customer acknowledges and agrees that it shall not acquire or claim any title to any Intellectual Property Rights by virtue of the rights granted to the Customer under the Contract nor do or omit to do anything which is likely to prejudice them.
11.2. The Customer shall not itself, and shall procure that no third party shall, use McLaren's name, logo or any other of McLaren's Intellectual Property Rights, nor the name, logo or any other Intellectual Property Rights of any of McLaren's authorised partners or sponsors, nor the name or image of any vehicle, building, driver or Employee of McLaren or any of its Associated Companies, unless the prior written consent of McLaren and/or its Associated Companies and/or McLaren's authorised partner or sponsor has been given to the Customer.
11.3. The Customer shall ensure that no adverse comments (oral or written (including statements made on social networking sites such as Twitter and Facebook)) are made about the Goods, the Services, or McLaren or its Associated Companies or their respective sponsors or Employees by the Customer, its Employees, agents and sub-contractors nor commit any act which may bring any of them into disrepute. Other than as permitted by these Terms and Conditions, the Customer agrees that it shall not enter into any publicity in relation to the existence of the Contract or the consequent connection with McLaren, without the prior written consent of McLaren (such consent to be given at McLaren's sole discretion).
11.4. McLaren and it Associated Companies shall have the unconditional right to use images (still or moving) of the Goods and/or Services in any and all forms of advertising and promotions in all media.
12.1. To the fullest extent permitted by law (and except as expressly provided in these Terms and Conditions), all conditions, warranties, terms and representations expressed or implied by statute, common law or otherwise in relation to the Goods and/or Services are excluded.
12.2. Except as expressly provided in these Terms and Conditions, McLaren shall not be liable to the Customer for any loss, injury or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise), whether direct or indirect, whether resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of McLaren or its Associated Companies, or its Employees, or agents in connection with the Goods and or Services or otherwise in connection with these Terms and Conditions.
12.3. Subject to Clause 13, where any court or arbitrator determines that McLaren is liable to the Customer for whatever reason:
12.3.1. to the fullest extent permitted by law, McLaren’s total liability to the Customer in contract, tort (including negligence, save for any liability arising from death or personal injury due to the negligence of McLaren or its Employees which shall be unlimited) or breach of statutory duty, misrepresentation or otherwise, arising in connection with performance or contemplated performance under the Contract will be limited to the Price; and
12.3.2. McLaren shall not be responsible to the Customer for any indirect or consequential losses and/or loss of profit and/or loss of business and/or depletion of goodwill and/or consequential loss suffered by any person and/or costs or expenses which arise out of or in connection with the Contract.
12.4. Nothing in this Clause 12 or otherwise in these Terms and Conditions shall exclude or in any way limit McLaren’s liability to the Customer for: (i) fraud; (ii) death or personal injury caused by McLaren’s negligence (including negligence as defined in s.1 Unfair Contract Terms Act 1977); (iii) breach of terms regarding title implied by s.12 Sale of Goods Act 1979 and/or s.2 Supply of Goods and Services Act 1982; or (iv) any liability to the extent the same may not be excluded or limited as a matter of law.
In the event that McLaren is unable to supply the Goods and/or Services to the Customer in accordance with these Terms and Conditions, McLaren shall not be liable to the extent that such failure to supply is due to an event of force majeure, including (but not limited to) acts of God, flood, drought, earthquake, epidemic, pandemic, terrorist attack, war or threat or preparation of war, armed conflict, embargo, breaking off diplomatic relations, acts of government, governmental regulations, nuclear, chemical or biological contamination, import and export restrictions, fire, explosion, accident, collapse of buildings, labour disputes, trade disputes, strike, lock-out, industrial action, riot, insurrection, non-performance by suppliers or subcontractors, interruption or failure of utility service, transportation difficulties or depletion of stock of raw materials.
14.1. Failure by McLaren to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
14.2. Each Party agrees and undertakes that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other Party disclose to any third party all information of a confidential nature (including trade secrets and information of commercial value) which may become known to such Party from the other unless such information is public knowledge (other than by breach of these Terms and Conditions) or is required to be disclosed by a court of competent jurisdiction. This Clause 14.2 shall survive termination and/or expiry of the Contract.
14.3. If any provision or part of these Terms and Conditions shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these Terms and Conditions, all of which shall remain in full force and effect.
14.4. Any notice hereunder shall be deemed to have been duly given if in writing and delivered by hand or by courier or sent by prepaid first class registered post to the Party concerned at its address as specified below (for McLaren) or in the Order (for the Customer) or principal place of business or by facsimile. Any notice shall be treated as having been served on Delivery if delivered by hand, two (2) Business Days after despatch if sent by courier, on confirmation of transmission if sent by facsimile on a Business Day or on the next Business Day following receipt of transmission if sent on a day other than a Business Day and four (4) Business Days after posting if sent by pre-paid registered mail.
McLaren: McLaren Automotive Limited
McLaren Technology Centre,
For the Attention of: Executive Director – Commercial and Legal
Customer: As set out in the Order
For the Attention of: As set out in the Order
14.5. An Associated Company of McLaren may enforce any provision of these Terms and Conditions subject to and in accordance with the provisions of the Act. Except as provided in this Clause 14.5, a person who is not a party to these Terms and Conditions has no rights under the Act to enforce any provision of these Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
14.6. In the event of the existence of any ambiguity in the construction of these Terms and Conditions, the fact that these Terms and Conditions have been drafted by McLaren shall not operate so as to construe such ambiguity against McLaren.
14.7. These Terms and Conditions and the documents referred to herein contain all the terms agreed between the Parties regarding its subject matters and supersedes any prior agreement, understanding or arrangement between the Parties in relation to the subject matters, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to the Contract. Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into the Contract unless such untrue statement was made fraudulently, and that Party’s only remedies shall be for breach of contract as provided in these Terms and Conditions.
14.8. The Contract shall be governed by and construed in accordance with English law and the Parties hereby submit to the exclusive jurisdiction of the English Courts provided that McLaren may sue the Customer in the courts of any country, such proviso being for the sole benefit of McLaren.