1. During the Term, DK Engineering Limited (referred to as DK) will offer the Vehicle for sale for not less than the Asking Price. The Principal hereby appoints DK as his exclusive agent for the duration of the Term for the purpose of selling the Vehicle, and DK agrees to act in that capacity subject to the terms and conditions of this Agreement.
2. Commission at the Agreed Rate plus VAT will be payable on the actual sale price achieved.
3. Where DK receives an offer that is less than the Asking Price, no sale will be agreed without the prior written consent of the Principal. In the event, whilst the car is being marketed for sale, it is agreed that the asking price shall be reduced this threshold will move with that change and where an offer is received that is greater than this amount below the revised asking price then no sale will be agreed without the prior written consent of the Principal.
4. The Principal hereby warrants and represents to DK that he is the legal and beneficial owner of the Vehicle, free from any encumbrances and third party rights and has sole authority to sell it free of any third party’s consent. The Principal warrants that the factual statements about the Vehicle and its paper history and provenance provided to DK are correct and may be repeated and relied upon by DK in its selling activity.
5. The Principal shall not during the Term either offer the Vehicle for sale personally or appoint any other person, firm or company as the Principal’s agent for the purpose of selling the Vehicle.
6. DK shall use all reasonable endeavours to secure a buyer for the Vehicle for a sum at or around the Asking Price, and shall be entitled (subject to paragraph 3 above) to enter into any contract for the sale of the Vehicle on behalf of the Principal. The sale of the Vehicle will then be invoiced to the buyer by DK acting as agent, whereby the sale price will be received by DK. Alternatively, DK may at its option require that the sale be implemented and documented directly between the Principal and the buyer.
7. Where the sale price is received by DK acting as agent, the balance (following deduction of the Agreed Commission and any other disbursements reasonably incurred) will be paid to the Principal within 5 working days after receipt.
8. Where the sale price is received directly by the Principal, the Principal shall pay the Agreed Commission plus any other disbursements reasonably incurred to DK within 7 days of completion of the sale. DK shall not be required without its advance consent to postpone receipt of any part of its commission pending the sale of any vehicle that may be accepted by the Principal in part exchange.
9. During the Term, unless otherwise agreed in writing, the Vehicle will remain in the custody of DK. While at DK’s premises the Vehicle will be insured at DK’s cost for not less than the Asking Price for negligence only. While in its control, DK will be responsible for the safekeeping of the Vehicle, which may be driven and demonstrated only by DK’s staff, by potential buyers or by motor industry journalists if accompanied by a member of staff. DK may advertise and publicise the Vehicle as it sees fit. However, the principal must continue to insure the car until the sale price is received by the principal.
10. DK may where necessary carry out repairs to or remedy safety issues on the Vehicle to make it saleable or indeed carry out and required works to make it “ready to retail” such as cleaning and detailing, but will consult the Principal before incurring costs in excess of £XXXX + VAT. Any such repair costs will either be deducted from the balance of sale proceeds, or where no sale takes place will be reimbursed by the Principal at he end of the Term, before the Vehicle is returned.
11. DK will notify the Principal of any unusual or non-cash offers made for the purchase of the Vehicle, such as an exchange proposal or extended payment scheme or other terms proposed by the prospective buyer. If the Principal continues after advice to decline to accept an offer for the Vehicle which DK recommends should be accepted, DK may at its option terminate this Agreement by not less than 14 days notice to the Principal.
12. Without prejudice to paragraph 11 above, either party shall be entitled forthwith to terminate this Agreement by written notice to the other if the other party commits a material breach of any of the provisions of this Agreement. Any waiver by either party of a breach of any provision of this Agreement shall not be a considered as a waiver of any subsequent breach of the same or of any other provision.
13. If by the end of the Term (as the same may be extended by the Parties in writing) DK has not notified the Principal that it has agreed a sale of the Vehicle, or upon termination of this agency for any other reason, the Principal will be responsible for terminating the agency in writing, or indeed DK shall need to do so. Alternatively the term shall automatically extend until either party terminates it in writing. At the time the agency is terminated the principal shall arrange and shall bear the cost of the removal and onward transport of the Vehicle from DK’s premises. DK may charge storage fees for any Vehicle not removed within 14 days after termination of the agency.
14. If during the Term, the Principal appoints another agent to sell the Vehicle in breach of paragraph 5 of this Agreement or himself arranges the sale of the Vehicle, or if within six months after the end of the Term sells the Vehicle to a person identified in writing to the Principal by DK, DK shall forthwith be entitled to receive by way of agreed liquidated damages the same sum (plus VAT) as it would have received as Agreed Commission on the actual sale price or the Asking Price, whichever is the higher, and it is hereby acknowledged that such sum shall represent a reasonable estimate of the damage and loss arising from the breach of this Agreement by the Principal.
15. Subject to paragraph 16 below, the parties shall indemnify each other against any loss or liability, costs (including legal costs) or damages arising as a result of the other party's breach of this Agreement.
16. DK shall not be liable to the Principal in any way if the Vehicle suffers a mechanical fault or failure whilst in the custody of DK, unless the Principal shows that such fault or failure resulted directly from DK’s negligence. For the avoidance of doubt, nothing in this Agreement shall exclude or restrict DK’s liability for death or personal injury resulting from its negligence, or its liability for fraudulent misrepresentation, or any other liability which cannot be excluded or limited under the applicable law.
17. Nothing in this Agreement shall be deemed to create a partnership or the relationship of employer or employee between the parties.
18. If on the expiry or during the Term the Principal allows the Agent to continue marketing the Vehicle then the Agent may take such steps as are reasonable to achieve a price acceptable to the Principal, including remarketing the vehicle at a lower price, purchasing the Vehicle itself and reselling it, or instructing sub agents to sell the Vehicle on its behalf.
19. In the event that the Agents achieve a sale of the Vehicle in accordance with 18 above, then such terms in this Agreement as are inconsistent with the sale shall be deemed to have been varied accordingly.
20. Any notice to be given by either party hereunder may be given by hand or sent by first class pre-paid post or facsimile (followed by hard copy by post) to the other party at the addresses or facsimile numbers set out in this Agreement, and shall be deemed delivered in the case of delivery by hand when delivered, in the case of a first class letter 48 hours after posting and in the case of facsimile when despatched and proved to have been received by the recipient.
21. This Agreement, which is governed by English Law and whereby both parties submit to the non-exclusive jurisdiction of the English courts, contains the entire agreement between the parties with respect to the agency for the Vehicle, supersedes all previous agreements and understandings between the parties with respect thereto, and may only be modified by a document in writing signed by the parties or their duly authorised representatives.