Terms & Conditions

OGATI’s standard terms and conditions of sale.

 

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Conditions: the terms and conditions of sale set out in this document as amended from time to time in accordance with clause 11.3.

Contract: the contract between the Supplier and Customer for the sale and purchase of the Products in accordance with these Conditions.

Customer: the person or firm who purchases the Products from the Supplier.

Delivery Location: has the meaning given in clause 4.2.

Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control, including (without limitation) act of God, war, armed conflict, terrorist attack, epidemic, pandemic, civil commotion, riot, government action, sanctions, embargo, labour dispute (excluding disputes involving a party’s own workforce), failure of utilities or telecommunications, fire, flood, storm, earthquake or natural disaster, supply chain disruption, factory strikes, closures, delivery delays or failures, and any customs, import, export or border-related delays or restrictions.

Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).

Order: the Customer’s order for the Products, as set out in the Customer’s written acceptance of the Supplier’s quotation, or as confirmed to the Supplier via its authorised commercial agent or other authorised party.

Products: the products (or any part of them) set out in the Order.

Specification: any specification for the Products, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier. 

Supplier: Ogati Tyres Limited, a company registered in England and Wales with company number 16103922, whose registered office is at Unit 34-35, Staunton Court, Staunton, Gloucester, GL19 3QS.

Warranty Period: has the meaning given in clause 5.1.

 

Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written includes email.

 

 

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. 

 

2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer must ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

 

2.3 The Order shall only be deemed to be accepted when the Supplier (or any person authorised by the Supplier) issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.

 

2.4 The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

 

2.5 Any samples, drawings, descriptive matter or advertising produced by or on behalf of the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.

 

2.6 A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) calendar days from its date of issue.

 

 

3.1 The Products are described in the Supplier’s digital (and/or printed) catalogue, or as shown on its website.

 

3.2 To the extent that the Supplier manufactures (or appoints a third party to manufacture) the Products in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all Losses incurred by the Supplier as a result of any claim that the Supplier’s use of the Specification infringes the intellectual property rights of any third party. This clause 3.2 shall survive termination of the Contract.

 

3.3 The Supplier reserves the right to amend the Specification if required by any applicable law or regulatory requirement, and shall notify the Customer in any such event.

 

3.4 Unless expressly agreed in the Order, the Contract relates only to the sale and delivery of the Products and excludes any fitting services. The Customer (and/or its end-user customer) shall be solely responsible for the use, fitting and onward assembly of the Products.

 

 

4.1 The Supplier shall ensure that: 

(a) each delivery of the Products is accompanied by either, a delivery note or packing list  (depending on the haulier / logistics provider who collects the Products from the port and delivers to the Customer) that shows the date of the Order, the type and quantity of the Products (including the code number of the Products, where applicable) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered; and 

(b) it states on the delivery note if it requires the Customer to return any packaging materials, in which case the Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.

 

4.2 The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location) via FOB, CIF or DAP Incoterms 2020® at any time after the Supplier notifies the Customer that the Products are ready.

 

4.3 For Orders in the United Kingdom, delivery is completed on the completion of unloading of the Products at the Delivery Location. Where the Delivery Location is outside the United Kingdom, delivery shall be: (1) at the destination port; or (2) at the address where the Supplier’s agent is instructed to deliver the Product, as the case may be in accordance with FOB, CIF, DAP Incoterms 2020®, unless otherwise specified in the Order, and risk shall pass to the Customer when the Products are handed to the first carrier.

 

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event, or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

 

4.5 The Supplier shall not be liable for any failure to deliver the Products that is caused by a Force Majeure Event, or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

 

4.6 If the Customer fails to take or accept (as relevant) delivery of the Products within three Business Days of the Supplier notifying the Customer in writing that the Products are ready for delivery, then, except where such failure is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract in respect of the Products:

(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Products were ready; and

(b) the Supplier shall store the Products until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Customer for all related costs and expenses (including insurance).

 

4.7 If ten Business Days after the date on which the Supplier notified the Customer that the Products were ready for delivery the Customer has not taken or accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products and, without limiting its rights and after deducting reasonable costs and expenses related to storage (including insurance) and selling, charge the Customer for any shortfall below the price of the Products.

 

4.8 The Supplier may deliver the Products by instalments, which it shall invoice and which the Customer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment. 

 

 

5.1 Subject always to the remainder of this clause 5, the Customer shall benefit from the original manufacturer’s warranty applicable to the Products (Manufacturer’s Warranty) for up to seven (7) years (Warranty Period). To the fullest extent permitted by law, and subject always to the terms and conditions of the Manufacturer’s Warranty, the Supplier hereby assigns, transfers, and flows down to the Customer, and use reasonable endeavours to procure for the Customer the benefit of, the Manufacturer’s Warranty and other remedies provided by the original manufacturer in respect of the Products. The Supplier shall provide the Customer with copies of all Manufacturer’s Warranty documentation upon request and shall use reasonable endeavours to assist the Customer in making any claim under such Manufacturer’s Warranty. Where assignment of a Manufacturer’s Warranty is not permitted, the Supplier shall hold such warranty on trust for the benefit of the Customer and shall, at the Customer’s cost and direction, enforce such warranty on behalf of the Customer.

 

5.2 Subject to clause 5.5, if:

(a) (a) the Customer gives notice in writing to the Supplier within 2 days of delivery (or, in the case of a latent defect, within 14 days of the date on which the defect ought reasonably to have been discovered) that some or all of the Products do not comply with the warranty set out in clause 5.1, such notice to include reasonable details of the alleged defect and, where possible, photographic evidence;

(b) the Supplier is given a reasonable opportunity of examining such Products or arrange for a third-party representative to inspect the Products; and

(c) requested by the Supplier following its inspection, the Customer returns such Products to the Supplier’s place of business or such other location as the Supplier may direct,

then, subject to clause 5.3, the Supplier shall within 20 Business Days of confirming that such Products do not comply with the Manufacturer’s Warranty set out in clause 5.1, at its option and subject to the approval and actions of the original manufacturer: (i) repair the defective Products; (ii) replace the defective Products; or (iii) refund the price of the defective Products in full. The Supplier’s decision as to which remedy to provide shall be final and the Supplier shall have no further liability to the Customer, except to the extent set out in clause 5.9.

 

5.3 If the Supplier determines that the Products comply with the warranty set out in clause 5.1, or that any of the exclusions in clause 5.5 apply, the Supplier shall notify the Customer in writing within 10 Business Days of completing its inspection. In such circumstances, the Customer shall bear all costs of inspection, transport and storage incurred by the Supplier.

 

5.4 Where the Supplier and/or the original manufacturer confirms that the Products are defective under clause 5.2, the Supplier and/or the original manufacturer shall bear the reasonable costs of returning the defective Products and delivering any repaired or replacement Products to the Customer. Where the defect is not confirmed, the Customer shall bear such costs.

 

5.5 The Supplier shall not be liable for the Products’ failure to comply with the warranty set out in clause 5.1 if:

(a) the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use, handling, assembly or maintenance of the Products or (if there are none) good trade practice regarding the same; 

(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by or on behalf of the Customer; 

(d) the Customer alters or repairs such Products without the written consent of the Supplier; 

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

 

5.6 Unless otherwise agreed in the Specification, tyres may be supplied with date codes reflecting manufacture within a reasonable period prior to delivery consistent with industry practice. Tyres are not considered defective solely by reason of their date of manufacture, however most will have a maximum life of 10-years, and so any such tyres of that age should not be used on any vehicle. The Customer is responsible for any such stock rotation and for ensuring that tyres are fitted within timeframes consistent with good industry practice.

 

5.7 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.

 

5.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 (or any equivalent legislation in the Customer’s jurisdiction) are, to the fullest extent permitted by law, excluded from the Contract; and the remedies set out in this clause 5 shall be the Customer’s sole and exclusive remedies, and the Supplier’s sole and exclusive liability, in respect of any breach of Manufacturer’s Warranty. Save as expressly set out in this Agreement, all other warranties, conditions, terms, undertakings, and representations of any kind, whether express or implied, statutory or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement, are hereby excluded to the fullest extent permitted by applicable law.

 

5.9 These Conditions shall apply to any repaired or replacement Products supplied by the Supplier.

 

5.10 The Customer shall promptly comply with all safety notices, field actions and recalls issued by the Supplier and/or original manufacturer in relation to the Products, and shall assist the Supplier in tracing, notifying and remedying affected Products, including by providing relevant sales and end-customer contact information to the extent permitted by law. The Customer shall not issue any recall or safety communication concerning the Products without the Supplier’s prior written consent, except where required by law.

 

 

6.1 The risk in the Products shall pass to the Customer, at the earlier of: (1) as soon as the Products are shipped on FOB Incoterms 2020®; (2) on completion of delivery to the port on CIF Incoterms 2020®; or (3) on completion of delivery to the Customer on DAP Incoterms 2020®.

 

6.2 Title to the Products shall not pass to the Customer until the earlier of:

(a) the Supplier receives payment in full (in cash or cleared funds) for the Products and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; and

(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer immediately before sale.

 

6.3 Until title to the Products has passed to the Customer, the Customer shall:

(a) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and

(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:

(i) the Products; and

(ii) the Customer’s ongoing financial position.

 

6.4 At any time before title to the Products passes to the Customer, the Supplier may:

(a) require the Customer to deliver up all Products in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored, to recover them. The Customer shall procure entry to any such third party’s premises if requested to do so by the Supplier.

(b) The Customer acknowledges that the retention of title provisions in this clause 6 may be subject to local registration or other requirements in the Customer’s jurisdiction in order to be effective against third parties. The Customer shall, at the Supplier’s request and at the Customer’s expense, take all steps necessary to give effect to the Supplier’s retention of title in the Customer’s jurisdiction, including (without limitation) registering the Supplier’s interest in any applicable register.

 

 

7.1 The price of the Products shall be the price set out in the Order, but shall always be subject to final confirmation via invoice, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

 

7.2 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:

(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, shipping costs, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or 

(c) any delay caused by any instructions of the Customer or failure of the Customer to give or delay by the Customer in giving the Supplier adequate or accurate information or instructions. 

 

7.3 The price of the Products: 

(a) excludes amounts in respect of value added tax (VAT) or any equivalent sales tax in the Customer’s jurisdiction, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (or, where applicable, account for under the reverse charge mechanism), subject to the receipt of a valid VAT invoice; and

(b) excludes the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer, save where expressly provided otherwise, or as included in FOB, CIF and DAP Incoterms 2020® (which shall be confirmed in the Order).

 

7.4 The Supplier may invoice the Customer for the Products on or at any time after shipment of the Products.

 

7.5 The Customer shall pay the full invoice amount for each shipment of Products at the earlier of: (1) within forty (40) days of the date of issuance of the relevant bill of lading by the carrier / haulier; or (2) no less than seven (7) days before delivery of the Products (the Due Date). The date of issuance of the bill of lading shall be conclusive evidence of the commencement of the payment period, and notwithstanding any other clause to the contrary, the Customer’s payment obligation shall not be conditional upon physical delivery, inspection, or acceptance of the Goods.

 

7.6 The Customer shall pay each invoice submitted by the Supplier in full and in cleared funds to a bank account nominated in writing by the Supplier and time for payment shall be of the essence of the Contract; and any such payment terms shall supersede and take precedence over any applicable payment terms contained in FOB, CIF and/or DAP Incoterms 2020®.

 

7.7 If the Customer fails to make a payment due to the Supplier under the Contract by the Due Date, then without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the Due Date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

 

7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

7.9 Unless otherwise agreed in writing, all payments under the Contract shall be made in pounds sterling (GBP). Where payments are made in any other currency, the Customer shall bear all foreign exchange costs, and the Supplier may at its discretion adjust the amount payable to reflect exchange rate fluctuations between the date of the Order and the date of payment.

 

 

8.1 The limits and exclusions in this clause 8 reflect the insurance cover the Supplier has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.

 

8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.

 

8.3 Nothing in the Contract limits any liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; 

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d) defective products under the Consumer Protection Act 1987; 

(e) any liability that cannot legally be limited; or

(f) the Customer’s payment obligations under the Contract.

 

8.4 Subject to clause 8.3, the Supplier’s total liability to the Customer shall not exceed the greater of £10,000 or an amount equal to 100% of the payments received from the Customer in the 12 months preceding the date of the claim.

 

8.5 Subject to clause 8.3, the following types of loss are wholly excluded:

(a) loss of profits (including loss of anticipated savings);

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of use or corruption of software, data or information;

(e) loss of or damage to goodwill; and

(f) indirect or consequential loss.

 

8.6 This clause 8 shall survive termination of the Contract.

 

 

9.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of it being notified in writing to do so; 

(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; 

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

 

9.2 Without limiting its other rights or remedies, the Supplier may suspend supply of the Products under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

 

9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

 

9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which the Customer shall pay immediately on receipt.

 

9.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

 

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

 

 

Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 14 days, the party not affected may terminate the Contract by giving not less than 14 days’ written notice to the affected party.

 

 

11.1 Assignment and other dealings.

(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

 

11.2 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes any previous agreements, whether written or oral.

(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

 

11.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

11.4 Waiver. 

(a) Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. 

(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

 

11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 11.5, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

11.6 Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the parties’ respective email addresses stated on the Order and, in the case of the Supplier, copy sent to tim@ogatityres.com. 

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address; or

(ii) 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; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume. 

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

11.7 Third party rights. 

(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

 

11.8 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

 

11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. The Customer acknowledges that any judgment obtained in the courts of England and Wales may need to be enforced in the Customer’s jurisdiction in accordance with applicable local laws and procedures and agrees to cooperate with any such enforcement proceedings.