Terms and Conditions

1. INTERPRETATION

1.1 Definitions. In these Conditions, the following definitions apply:

1. “BTN Turbo”: means BTN Turbo Charger Service Ltd (registered in England and Wales with company number 01173050).

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

   “Conditions”: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.

   “Contract”: the contract between BTN Turbo and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

   “Customer”: the person or firm who purchases the Goods from BTN Turbo.

   “Force Majeure Event”: has the meaning given in clause 10.

   “Goods”: means a New Unit or an Old Unit or an OMX Remanufactured unit or an Exchange Unit (as the case may be) set out in the Order.

   “Old Unit”: means a used turbocharger removed from an engine;

   “New Unit”: means a new un-used turbocharger;

   “Order”: the Customer’s order for the Goods, as set out in BTN Turbo’s quotation.

   “Specification”: means the manufacturer’s specification for the Goods, including any related plans and drawings, instructions, manuals whether in writing or in electronic form provided my the manufacturer in any media.

   “Surcharge”: The amount payable in the event that the Customer fails to deliver an Old Unit as part exchange as provide for in clause 2.7.

2. 1.2 “Construction”: In these Conditions, the following rules apply:
   1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
   2. A reference to a party includes its personal representatives, successors or permitted assigns.
   3. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
   4. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
   5. A reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

1. 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 trade, custom, practice or course of dealing.
2. 2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
3. 2.3 The Order shall only be deemed to be accepted when BTN Turbo issues a written acceptance of the Order, at which point the Contract shall come into existence.
4. 2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of BTN Turbo, which is not set out in the Contract.
5. 2.5 Any samples, drawings, descriptive matter, or advertising produced by BTN Turbo and any descriptions or illustrations contained in BTN Turbo’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
6. 2.6 A quotation for the Goods given by BTN Turbo shall not constitute an offer.
7. 2.7 Part Exchange
1. 2.7.1 Where an Old Unit is to be exchanged in part consideration for a New Unit or a Remanufactured Unit the Customer must provide the Old Unit to BTN Turbo on demand and in any event no later than 3 months from the date of invoice (time shall be of the essence) and in such condition as complies with clause 2.7.2, in default of which the Customer shall pay BTN Turbo the Surcharge. The Surcharge will only be refunded by BTN Turbo to the Customer on receipt of the Old Unit within the period of 3 months referred to above.
2. 2.7.2 BTN Turbo will not accept an Old Unit as part consideration for or in exchange for units referred to above, unless the Old Unit:
   1. is complete and not dismantled in any way;
   2. is not be heavily corroded;
   3. does not have a fractured turbine shaft;
   4. has not suffered accidental or deliberate damage; and
   5. is in BTN Turbo’s sole discretion capable of recycling or reconditioning at no financial loss.

3. GOODS

1. 3.1 The Goods are described in BTN Turbo’s web site search facility as modified by any applicable Specification.

4. DELIVERY

1. 4.1 BTN Turbo shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and BTN Turbo’s reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable).
2. 4.2 BTN Turbo shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after BTN Turbo notifies the Customer that the Goods are ready.
3. 4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4. 4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. BTN Turbo shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide BTN Turbo with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5. 4.5 Notwithstanding BTN Turbo’s best endeavours, the goods fail to be delivered by such delivery date as stated, such failure shall not constitute a breach of contract and the Customer shall not be entitled to claim compensation for such failure or for any consequential loss or damage resulting therefrom.
6. 4.6 Subject to the provisions of sub-clause 4.5 above, where despatch or delivery of the goods is delayed by more than 30 (thirty) Business Days beyond the date given in the contract, the Customer shall be entitled to withdraw from the contract upon written notice and in such circumstances the Customer shall pay at the contract rate for all goods sold by BTN Turbo to the actual date of termination.

5. WARRANTY

1. 5.1 The following warranty periods apply to the following Goods from the date of delivery:

   Unit Type	Use	Customer Profile	Relevant Warranty Period
   New Units	For use in vehicles listed as domestic cars	UK Factors	24 months
   New Units and OMX / EXCHANGE Units	For use in any engine to vehicles listed as: bus, truck, agricultural, off- highway and marine	UK Factors or mechanical Fitters	24 months and the ”No Quibble Guarantee“ will apply in the first 12 months’ ONLY, as per clause 5.3.2.
   OMX / EXCHANGE Units	For use in vehicles listed as domestic cars and Light Commercial Vehicles	Any Customer Profile worldwide	24 months
   New and OMX / EXCHANGE Units	Any of the above uses	UK Trade resellers or Export to any non-UK Customer	24 months
   Any of the above Units	Any of the above uses	OE	24 months

2. 5.2 BTN Turbo warrants that on delivery, and for the Relevant Warranty Period (as set out in the table above) the Goods shall:
   1. conform with the Specification; and
   2. be free from material defects in design, material and workmanship.
3. 5.3 Subject to clause 5.4,
   1. 5.3.1 if
      1. the Customer gives notice in writing to BTN Turbo during the Relevant Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the relevant warranty set out in clause 5.2;
      2. BTN Turbo is given a reasonable opportunity of examining such Goods; and
      3. the Customer (if asked to do so by BTN Turbo) returns such Goods to BTN Turbo’s place of business at the Customer’s cost, the following process (”Resolution Process“) shall apply at BTN Turbo’s election;
         1. BTN Turbo shall inspect the Goods and undertake an internal examination supported by a technical report (“BTN Report”) that it will submit to the Customer as soon as reasonably practicable and in any event within 20 Business Days of BTN Turbo receiving the Goods;
         2. Within 14 Business Days of receipt of the BTN Report, the Customer shall notify BTN Turbo in writing if it is not satisfied with the BTN Report and confirm whether it requires determination to be made by an independent expert (”the Expert“) who shall be a person suitably qualified and experienced in the subject matter of the dispute;
         3. The Customer and BTN Turbo will endeavour to agree on the person/organisation to be appointed as the Expert and in default of agreement either party may elect that the Expert shall be appointed by the President for the time being of the Institute of Automotive Engineer Assessors, who shall appoint the Expert;
         4. the Expert shall have full discretion in the conduct of the process and each party agrees to provide the Expert with the fullest cooperation including all facts and information requested, delivery of the Goods (as well as the vehicle to which the Goods were fitted) for inspection and testing, access to the respective parties technical advisors and technical reports prepared by such advisors;
         5. the Expert’s determination shall be final and binding. The Expert’s costs shall be paid in full by the party who the Expert shall find against; and
         6. in the event that the Expert shall find BTN Turbo at fault, BTN Turbo shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
   2. 5.3.2 NEW AND EXCHANGE UNITS — No Quibble Warranty.
      PROVIDED THAT in the case of New Units or Exchange Units of any Specification, but subject to clause 5.4, BTN Turbo shall not be entitled to invoke the Resolution Process and must at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4. 5.4 BTN Turbo shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
   1. the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
   2. the defect arises because the Customer failed to follow Specifications or BTN Turbo’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
   3. the defect arises as a result of BTN Turbo following any drawing, design or specification supplied by the Customer;
   4. the Customer alters or repairs such Goods other than in accordance with or to comply with Specifications;
   5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, including use of the Goods for enhancing performance for competitive purposes (such as fitted to racing car engines for high acceleration, speed, increase power output or the like);
   6. the Goods do not meet Customer’s requirement due to incorrect description, information or specifications given to BTN Turbo by Customer; or
   7. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5. 5.5 Except as provided in this clause 5, BTN Turbo shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
6. 5.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7. 5.7 These Conditions shall apply to any repaired or replacement Goods supplied by BTN Turbo.

6. TITLE AND RISK

1. 6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
2. 6.2 Until the purchase price of the goods comprised in this or any other contract between BTN Turbo and the Customer shall have been paid or satisfied in full (if by cheque then only upon clearance):
3. 6.2.1 The property in the goods comprised in this contract remain vested in BTN Turbo (notwithstanding the delivery of the same and the passing of the risk therein).
4. 6.2.2 The Customer shall store the goods in such a way that they can be readily identified as being BTN Turbo’s property.
5. 6.2.3 The Customer shall, on request, inform BTN Turbo of the precise location of each item of the goods identified where applicable by its serial number, by supplying BTN Turbo at its expense within 5 (five) business days of its request with a written schedule of the said locations.
6. 6.2.4 The Customer may sell the goods as the Seller’s agent in the normal course of the Buyer’s business and may pass good title to the Buyer’s Customer being a bona fide purchaser for value without notice of BTN Turbo’s rights on the following conditions:
   • 6.2.4.1 BTN Turbo may at any time revoke the Customer’s said power of sale in the circumstances set out in these terms and conditions in relation to payment of goods.
   • 6.2.4.2 The Customer’s power of sale shall automatically cease in any of the circumstances set out in these terms and conditions in relation to insolvency or breach of contract.
   • 6.2.4.3 The Customer shall notify BTN Turbo without delay of any attachment of the goods or actions by third parties which might infringe the Customer’s title to the goods.
7. 6.2.5 Upon determination of the Customer’s power of sale, BTN Turbo shall be entitled by itself or its agents to enter upon any of the Buyer’s premises for the purpose of removing and repossessing such goods and BTN Turbo shall be entitled to claim from the Customer the costs and expenses incurred by BTN Turbo in and ancillary to the process of such removal and repossession.
8. 6.2.6 Until title of goods has passed to the Customer, the Customer shall not purport to be the owner of the goods and shall not show such goods as stock in its accounts
9. 6.2.7 The Customer shall insure the goods against theft or any damage howsoever caused until their price has been paid or until sale, whichever shall first occur and BTN Turbo shall be entitled to call for details of the insurance policy. If the Customer shall not insure the goods or shall fail to supply details of its insurance policy on demand to BTN Turbo, the Customer shall reimburse BTN Turbo for any cost of any insurance which BTN Turbo may reasonably arrange in respect of any of the goods during the whole or any part of the period from the date of its delivery of the goods until the date of payment to it of their full purchase price.
10. 6.3 Nothing in these conditions shall:
11. 6.3.1 entitle the Customer to return the goods or to delay payment therefore; or
12. 6.3.2 constitute or be deemed to have constituted the Customer as BTN Turbo’s agent otherwise than for the purposes of this clause;
13. 6.3.3 or render BTN Turbo liable to any third party for any unauthorised representation or warranty made or given by the Customer to such third party in relation to the goods;
14. 6.3.4 prevent BTN Turbo from maintaining an action for the price notwithstanding that the property in the goods may not have passed to the Customer.

7. PRICE AND PAYMENT

1. 7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in BTN Turbo’s published price list in force as at the date of delivery.
2. 7.2 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
3. 7.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT) and the Customer shall, pay such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
4. 7.4 BTN Turbo may invoice the Customer for the Goods on or at any time after the completion of delivery.
5. 7.5 The Customer shall pay the invoice in full and in cleared funds:
   1. In the case of Customers who have a credit account with BTN Turbo, by the last day of the calendar month immediately following the calendar month in which the invoice was dated; and
   2. In all other cases, on the date of the invoice; and Payment shall be made to the bank account nominated in writing by BTN Turbo. Time of payment is of the essence. Payments made by credit card will carry a 3% transaction fee. Payments by American Express are not accepted.
6. 7.6 If the Customer fails to make any payment due to BTN Turbo under the Contract by the due date for payment (“due date”), then the Customer shall pay interest on the overdue amount at the rate of 2% per month above Barclays Bank plc’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7. 7.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against BTN Turbo in order to justify withholding payment of any such amount in whole or in part. BTN Turbo may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by BTN Turbo to the Customer.

8. CUSTOMER’S INSOLVENCY OR INCAPACITY

1. 8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or BTN Turbo reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to BTN Turbo, BTN Turbo may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and BTN Turbo without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
2. 8.2 For the purposes of clause 8.1, the relevant events are:
   1. the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply, or (being an individual) the Customer is the subject of a bankruptcy petition or order; or
   2. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver
   3. a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
   4. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above;
   5. the Customer’s financial position deteriorates to such an extent that in BTN Turbo’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
3. 8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses, which expressly or by implication survive termination of the Contract, shall continue in full force and effect.

9. LIMITATION OF LIABILITY

1. 9.1 Nothing in these Conditions shall limit or exclude BTN Turbo’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; defective products under the Consumer Protection Act 1987.
2. 9.2 Subject to clause 9.1:
   1. BTN Turbo shall not be liable to the Customer, 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
   2. BTN Turbo’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods.

10. FORCE MAJEURE

1. Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control.

11. GENERAL

1. 11.1 Assignment and subcontracting.
   1. BTN Turbo may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
   2. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of BTN Turbo.
2. 11.2 Notices.
   1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
   2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or recorded delivery, 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.
   3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
3. 11.3 Severance.
   1. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
   2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
4. 11.4 Waiver.
   A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
5. 11.5 Third party rights.
   A person who is not a party to the Contract shall not have any rights under or in connection with it.
6. 11.6 Variation.
   Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by BTN Turbo.
7. 11.7 Governing law and jurisdiction.
   The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.