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AFTERSALES TERMS AND CONDITIONS (DISPUTE RESOLUTION)

 

BACKGROUND:

These Terms and Conditions are the standard terms which apply:

 

  1. to the provision to the Customer of any Services (as "Services" is defined in Clause 1 below) by the Garage, namely John Banks Limited and its associated branches with its head office being at Kempson Way, Moreton Hall, Bury St Edmunds, Suffolk, IP32 7AR and Company registration Number 01831725 whose registered office is at as above ("the garage").

 

  1. where the Customer is not a "Consumer" as defined by the Consumer Rights Act 2015.

 

  1. Definitions and Interpretation
    • In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

 

"Business"

means any business, trade, craft, or profession carried on by You or any other person/organisation;

"Consumer"

means  a "Consumer" as defined by the Consumer Rights Act 2015, that is to say an individual who receives any of the Services for his/her personal use and for purposes wholly or mainly outside the purposes of any Business;

"Courtesy Car Agreement"

means a separate agreement between You and Us containing the terms of agreement on which You, or your employee or other person acting on Your behalf, have any courtesy car in accordance with Clause 10 of these Terms and Conditions;

"Customer/You/Your"

means a customer of the Garage who requires its Services who is not acting as a Consumer;

"Estimate"

means a document giving the approximate Price of the Work;

"Force Majeure"

means any cause that is beyond the reasonable control of the Party in question including, but not limited to: power failure; internet service provider failure; strikes, lock-outs or other industrial action suffered by the Party or its suppliers or contractors; civil unrest; fire; explosion; flood; storms; earthquakes; subsidence; acts of terrorism (threatened or actual); acts of war; governmental action; epidemic or other natural disaster;

"Garage/Us/We/Our"

means the sites belonging to John Banks Limited aftersales divisions known as the  garage whose place of business and contact address is the same address as above OR any of its associated branches and reference to the Garage shall include reference to any and all of its staff including mechanics;

"Invoice"

means a final invoice giving the Total Price of the Work;

"Manufacturer"

means the manufacturer of the Vehicle;

"Price"

means the VAT exclusive fee payable for the Work including parts, labour, and any additional charges;

"Quotation"

means a document giving the agreed fixed Price of the Work which We shall not vary without Your explicit agreement;

"Services"

means any type of repair or maintenance of Vehicles;

"Total Price"

means the Price plus any VAT chargeable on the Price in addition

"Vehicle"

means Your vehicle which may be a car, van, truck, bus, motorhome, motorcycle, caravan or trailer;

"Warranty Period"

means the duration of the warranties provided by Us in accordance with Clause 9 of these Terms and Conditions; and

"Work"

means the particular Services that We agree to provide to You;

 

  • Unless the context otherwise requires, each reference in these Terms and Conditions to:
    • "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
    • a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
    • "these Terms and Conditions" is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
    • a Clause or paragraph is a reference to a Clause of these Terms and Conditions; and
    • a "Party" or the "Parties" refer to the parties to these Terms and Conditions;
  • The headings used in these Terms and Conditions are for convenience only and will not affect the interpretation of these Terms and Conditions;
  • Words signifying the singular shall include the plural and vice versa; and.
  • References to any gender shall include the other gender.
  1. Booking
    • You may request a booking for any Work (subject to Our confirming the booking) by telephone, email, live chat or SMS message;
    • When You request a booking, You must give Us the following information:
      • Customer contact details in full
      • Preferred date
      • Nature of the repairs required or maintenance requirement
      • Make, model, registration number
      • Any warranties or Service plans associated to the vehicle
    • We shall provide You with a booking confirmation either verbally, by SMS or email depending upon your contact preferences which shall provide prompts for all required information;
  2. Investigation and Diagnostics
    • Following the booking and prior to the calculation of an Estimate or Quotation it may be necessary for the Garage to conduct investigative or diagnostic work on the Vehicle in order to determine the nature of the Work required; and
    • Investigative and diagnostic work may incur a charge to the Customer. The Garage and the Customer shall agree upon a financial limit for such work prior to commencement. No investigation or diagnostics shall take place until such a limit has been agreed.
  3. Estimates and Quotations
  • We will prepare and submit an Estimate following a free Electronic Vehicle Health check, (containing the fixed Price plus any VAT thereon) to You either by email in the first instance and only by first class post if specifically requested, giving an Estimate based on the details You provide and additional information We have gathered from any investigation or diagnostics;
  • If You agree the VHC email by responding or calling the branch Estimate within 21 days or whilst the vehicle is with the department since Our issuing it to You, We will then book your car in and /or continue with agreed work.
  • We may charge You for producing an Estimate and / or a Quotation. If We are to make that charge, We shall tell You before We produce the Estimate or Quotation;
  • If You accept the Quotation within 14 days of Our issuing it to You, We shall then confirm the booking to You and We shall use Our reasonable endeavours to ensure that the date We agree for commencement of the Work is as close as possible to that which You originally requested subject to the supply of parts. Only if and when We give You that confirmation will there be binding contract between You and Us for the Work;
  • You may accept an Estimate or Quotation by email, telephone or first class post;
  • You confirm that, in connection with your request(s) for any Services, You are a person, company or other organisation who is acting wholly or mainly for the purposes of a Business and not as a "Consumer".
  1. Payment and Invoices
  • If We require a deposit or similar prepayment, We shall state it clearly in the Quotation or verbally and You must pay it within 2 days in order to get the parts ordered; We shall hold it in a secure account to enable Us to return it to You where it has to be returned to You or held against your final invoice;
  • From the point at which Work on the Vehicle commences up until the point at which You have paid in full all sums due, We shall have a general lien on Your Vehicle (i.e. a  right to possession of property until payment is made for work done to that property) for all sums due;
  • Following Our completion of the Work, We shall issue an invoice to You;
  • The invoice will provide a comprehensive summary of all of the Work done and will provide full details of all parts and labour including the Total Price payable for it with any VAT element(s) shown separately;
  • The invoice will also show the mileage of the Vehicle and will refer to the warranty set out in Clause 11;
  • All sums due will be payable immediately upon collection of the vehicle / completion of the work on the date of the relevant invoice;
  • You may make payment by cash, credit card, debit card or via Worldpay Link which will be sent to your email / SMS in order to make electronic payment or if preferred we can arrange for you to pay direct to our Bank within working hours;
  • In addition to Our rights under sub-Clause 5.2, We shall have the right to sell the Vehicle at Your expense if any sum due remains unpaid following Our written notice to You of 30 days. That notice period will begin no earlier than 30 days after the date of the relevant invoice;
  • From the due date of payment until We take the action set out in sub-Clause 5.8, any outstanding sum will incur interest on a daily basis at 2.5% above the base rate of HSBC Bank from time to time until You make payment in full.
  1. Insurance Claims and Accident Damage
  • If the Work to be carried out on the Vehicle is the subject of an insurance claim, You (or the policyholder if he/she/it is not the same person or entity) must sign any documents required by the insurer to be signed to authorise payment to Us for the Work;
  • We shall not be responsible for any delay in completing the Work and / or returning the Vehicle to You where that delay arises out of any actions of the insurer including, but not limited to, the withholding of payment.
  1. The Work
  • We shall use reasonable endeavours to ensure that all parts required for the completion of the Work will be in stock to enable Us to carry out the Work when it is booked to be carried out but We will tell You if, due to non-availability of parts or a delay in their delivery, We are unable to commence the Work on the date We have arranged with You and to complete it within the total amount of the time referred to in sub-Clause 7.5;
  • If We cannot carry out and complete the Work due to non-availability of parts or a delay in their delivery, then when We tell You that (as set out in sub-Clause 7.1), You may either make arrangements with Us for a re-booking or You may exercise Your right to cancel as set out in Clause 13;
  • We shall agree with You before We begin the Work on all parts that We are going to use (except for those additional parts referred to in sub-Clause 7.6). We shall explain to You why each part is needed unless You explicitly tell Us that You do not need that explanation;
  • We shall only use parts for the Work that are new and either Manufacturer’s original parts or those produced by a third party and authorised by the Manufacturer. If We in any way intend not to abide by this requirement, We will tell You Our reasons for doing so and We may not do so unless You first explicitly consent;
  • We will tell You before We commence the Work the amount of time We initially estimate that We will need to carry out the Work subject to any additional time needed under sub-Clause 7.6;
  • If We find during the course of the Work that We need to use additional parts and / or labour, We will only order additional parts or carry out additional Work if You first explicitly consent. For that purpose We will tell You immediately and give You an estimate for both the cost to You of additional parts and labour and also an estimate of the amount of additional time We need to carry out the additional Work and the reasons for needing it;
  • The amount of time that we estimate under sub-Clauses 7.5 and 7.6 is only intended as our best estimate(s) at the time. It will not be of the essence or an agreed fixed time but We will use reasonable endeavours to complete Work within time estimated;
  • Subject to the limits and exclusions of liability under Clause 10, if the time taken does exceed any such estimates(s) [by more than 30 day , We will not be liable for any excess time taken but We will nevertheless allow You a deduction from the Price not exceeding 10% per cent of the Price in an amount that We decide in Our reasonable discretion having regard to the excess time taken.
  • We replace any parts, We will make the original parts available to You to view and examine up to and including the time that You collect Your Vehicle. You may only remove those parts from the Garage if You will dispose of them in an environmentally responsible manner. If You do not wish to inspect and / or remove the parts, We shall dispose of them after You collect Your Vehicle; and
  • We shall use reasonable endeavours to ensure that We take good care of Your Vehicle and any of Your possessions inside it but We nevertheless advise You to remove all possessions from the Vehicle before We begin the Work.
  1. Vehicle Warranties
  • If the Vehicle is covered by a Manufacturer’s new vehicle warranty, anti-perforation warranty or rust / corrosion warranty at the time the Work is carried out, We shall carry out all of the Work in a way that adheres to the terms of those warranties and the Manufacturer’s specifications and documentation, using original or Manufacturer-authorised parts;
  • If Our compliance with sub-Clause 8.1 causes Us additional cost, We will tell You of alternatives and will explain to You in full the consequences of those alternatives (including, but not limited to, the voiding of the Manufacturer’s warranties). The decision as to whether or not We will follow any such alternative shall be Your decision alone;
  • Before We begin any of the Work covered by a Manufacturer’s or a third party organisation’s warranty We shall obtain their consent to Us carrying out that Work; and
  • We shall not be responsible or liable for any failure to comply with any warranties where You have not told Us of those warranties.
  1. Sub-Contracting

We may sub-contract any of Our obligations under these Terms and Conditions provided that any sub-contractor We use is reasonably skilled in the relevant practices and provided that We do not pass on to You any additional charges without Your prior consent.

  1. Insurance, Damage and Liability
  • We shall at all times have in place suitable and valid insurance, including public liability insurance;
  • We shall not be liable to You for any loss or damage You suffer due to Your failure to follow Our or the Manufacturer’s instructions;
  • We will not be liable to You for any failure or delay in performing Our obligations where such failure or delay results from Force Majeure;
  • We shall not be liable in contract or tort (including negligence) by reason of any breach by Us of any term of these Terms and Conditions or other express term of Our contract with You, or breach by Us of any implied warranty, condition or other term, or any negligent or innocent misrepresentation, or any negligence or other duty at common law, for any:
    • loss of use of a Vehicle;
    • interruption to business;
    • loss of income, revenue, business;
    • loss of business opportunity;
    • loss of profit or contracts;
    • loss of anticipated savings; or
    • any indirect, special or consequential loss, damage, costs, expenses or other claims;

arising from any act or omission by Us or any of Our agents or employees or sub-contractors or any other person or entity in connection with the performance of Our obligations arising under these Terms and Conditions and Our contract with You.

  • Nothing in these Terms and Conditions is intended to or will exclude or limit Our liability for death or personal injury caused by Our negligence (including that of Our employees, agents or sub-contractors) or for fraud or fraudulent misrepresentation.
  1. Warranty and Guarantee
  • We warrant the Work from the date of invoice for a Warranty Period of 7 days or a distance of 2,000 miles whichever occurs first;
  • Unless We explicitly tell you otherwise when We invoice You, We shall warrant all parts that We use from the date of invoice for a Warranty Period of in accordance with the manufacturer warranty guidelines whichever occurs first. The warranties on certain parts may vary due to their original Manufacturers’ warranty conditions, and in that case We will tell You in Our invoice or another document Our different Warranty Period or distance for those parts;
  • If any Work done and / or parts used fails during the Warranty Period, We shall carry out the necessary repairs and replacements at no additional cost to You;
  • Any warranty that We give You applies to Your Vehicle. If You sell or otherwise transfer ownership of Your Vehicle to another person, they will be entitled to the benefit of the warranty for the rest of the Warranty Period;
  • We provide Services to You for Business use/purposes, and not for any Consumer use/purposes;
  • We will be entitled to void any warranty that We give You if the Vehicle is used for anything other than normal purposes (unless We explicitly tell you otherwise). This includes:
  • Participating in racing or other competitions of any kind;
  • Participating in speed testing or time trials;
  • Use of the Vehicle in a way which exceeds its design limitations (exceeding maximum towing weight, for example);
  • Use of the Vehicle in a way which does not conform with Manufacturer’s recommendations; or
  • Failure to service or otherwise maintain the Vehicle in accordance with the Manufacturer’s recommendations.
  1. Courtesy Car
  • 1 We may loan You a courtesy car but We will not be bound to do so and may decline to do so due to non-availability of a car or any other reason, and We will not in any case loan You a courtesy car if the person You nominate as a driver to use a courtesy car on Your behalf is not eligible (as set out in sub-Clause 12.2) to be given one. If You request a courtesy car and We agree to provide one it will be on condition that You first complete and accept the terms and conditions of a Courtesy Car Agreement;
  • 2 We will not provide You with a courtesy car unless the person You nominate as a driver to use a courtesy car on Your behalf is eligible as follows:
  • 2.1 That person holds a full (not provisional) driving licence which s/he has held for at least 12 months at the date of being provided with the courtesy car, and, if s/he has a UK driving licence, s/he has shown Us both the photocard licence and the paper counterpart licence (not any copy of a licence);
  • 2.2 S/he is at least 21 years of age and not more than 75 years of age;
  • 2.3 S/he has no more than 9 penalty points on his/her Your driving licence;
  • 2.4 S/he has not been banned from driving for a period of 12 months or more as a result of a CD, DD, DR or UT Offence within a period of 5 years up to the date of being provided with the courtesy car; and
  • 2.5 S/he has shown Us two forms of identification (including his/her driving licence) when s/he is collecting the courtesy car, at least one of which includes his/her home address. Such forms of identification include, but are not limited to a passport, bank statement and a utility bill.
  1. Cancellation
  • 1 If under sub-Clause 13.2 You cancel any Work booked, and You have paid Us any deposit or prepayment under sub-Clause 5.1, We shall return it to You less any amount You owe to Us under any part(s) of this Clause 13, but You will still be liable to pay Us the remainder of the amount You owe Us;
  • 2 If, on or after You have brought Your Vehicle to Our premises for the Work to be carried out, You cancel the Work but We have by that time begun the Work, You must pay Us for all labour and for all parts We have used and, if We so decide, for all parts We have ordered but not yet used if in Our reasonable judgement We are unlikely to use or sell those ordered parts within 3 months. We shall invoice You for that labour and those parts. We will charge You for that labour at the same hourly rate as We used to calculate the Price. Clause 5 shall apply to the payment of any such invoice;
  • 3 The parts We have ordered but not used by the time You cancel will remain Our property. We may use or dispose of them as We see fit without accounting to You for their cost where We have charged You for them under sub-Clause 13.2;
  • 4 If You cancel any booked Work and You have a courtesy car from Us, You must return it to Us immediately; and
  • 5 Once You have paid Us all that You owe Us, You shall collect (or arrange for the collection of) Your Vehicle within 7 days If Your Vehicle remains on Our premises beyond that period. You shall pay Us for its storage at the rate of £10 per day. We will not release Your Vehicle until You have paid in full all sums that You owe Us (including the storage charge).
  1. Data Protection
    • All personal information that We may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation ("GDPR") and Your rights under the GDPR.
    • For complete details of Our collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of Your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy Notice available from https://www.johnbanks.co.uk/privacy-policy.aspx.
  2. Customer Confidence and Satisfaction, and Complaints
    • We are committed to ensuring that all customers receive a high standard of work and service, and We always welcome feedback from Our customers. We may ask You to complete a customer satisfaction via Trust Pilot or the manufacturer survey following completion of the Work. Whether or not You complete it will be for You alone to decide. If You do, it will help Us to provide a high quality service and to improving Our standards of work for You and other customers;

 

  • Whilst We always use all reasonable endeavours to ensure that Your experience as a customer of Ours is a positive one, We nevertheless want to hear from You if You have any cause for complaint; and

 

  • If You are not entirely satisfied with the Work or have any complaint about the Work or Our Services or any other complaint about Us or any of Our staff, please raise the matter with the branch Manager or to Olivia Tombs – Olivia.tombs@johnbanks.co.uk who can be contacted at the head office, Kempson Way, Moreton Hall, Bury St Edmunds, Suffolk, IP32 7AR. We shall respond within five working days after the date We receive Your complaint, giving You details of how We intend to resolve Your complaint.

 

  1. Dispute Resolution
    • If after We give You details of how We intend to resolve Your complaint, We and You are not able to agree on a means by which We will resolve Your complaint or are not able to resolve it, the Parties shall attempt to resolve the matter through negotiations between their appointed representatives who have the authority to settle such disputes.

 

  • If negotiations under sub-Clause 16.1 do not resolve the matter within 30 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution ("ADR") procedure via the Motor Ombudsman.

 

  • You should contact the ADR that John Banks and its associated branches are linked with as follows:

 

 

  • If the ADR procedure under sub-Clause 16.2 does not resolve the matter within the period as set out in their terms or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.

 

  • The seat of the arbitration under sub-Clause 16.3 shall be England and Wales. The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties. In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.

 

  • Nothing in this Clause 16 shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

 

  • The Parties hereby agree that the decision and outcome of the final method of dispute resolution under this Clause 16 shall be final and binding on both Parties.

 

  1. Changes to Terms and Conditions

We may from time to time change these Terms and Conditions without giving You notice, but We will use Our reasonable endeavours to inform You as soon as is reasonably possible of any such change.

  1. No Waiver

No failure or delay by Us or You in exercising any rights under these Terms and Conditions means that We or You have waived that right, and no waiver by Us or You of a breach of any provision of these Terms and Conditions means that We or You will waive any subsequent breach of the same or any other provision.

  1. Severance

If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected.

  1. Third Party Rights
    • No part of the contract between You and Us is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the contract.
    • Subject to this Clause 20, the contract between You and Us shall continue and be binding on the transferee, successors and assigns of either Party as required.
  • Entire Agreement

21.1     The documents comprising the contract between You and Us contain the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

21.2     Each Party acknowledges that, in entering into the contract, neither Party gives any warranty or  relies on any representation, warranty or other provision except as expressly provided in the documents comprising the contract, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

  • Law and Jurisdiction
    • These Terms and Conditions and the relationship between You and Us (whether contractual or otherwise) shall be governed by, and construed in accordance with English Law; and
Any dispute, controversy, proceedings or claim between You and Us relating to these Terms and Conditions (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of England and Wales 

 

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