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Walker Plant Services Ltd.
Terms and Conditions of Sale
1 These conditions apply to all orders and contracts for the supply of any goods by Walker Plant Services Ltd (“the Company”) to the Company's customers (“the Customer”) and no variation of these conditions is to have any effect unless accepted in writing by the Company.
2 These conditions shall also apply to service and/or repair contracts in so far as they are applicable to such contracts and any spare parts provided pursuant to such services and/or repair contracts shall be deemed to be “goods” for the purpose of these conditions but for the avoidance of doubt conditions 8 to 14 (inclusive) shall not apply to such contracts.
Health and Safety
3 All goods of whatever description and whether subject to special requirements or to the Company’s specification as to their use quality or fitness for any purpose are supplied on condition that the Customer ensures that the directions and advice given by the Company (if requested) are strictly observed and that their contents be specifically drawn to the attention of all their employees.
4 The Customer shall be solely responsible for providing at its own cost all such safety equipment and for full equipping the goods to meet the standards for the time being imposed pursuant to the Health and Safety at Work etc. Act 1974 in the light of the Customer’s own particular working conditions, location of equipment and requirements.
5 Any certificate of warranty which is supplied with the goods is given in addition and not in substitution for the statutory contractual and other legal rights of the Customer.
6 All orders shall be deemed to be for goods appropriate for the uses and fit for the purposes as are indicated for goods of their description as appear in the Company’s specifications which are available for the Customer at the Company’s Office and shall be deemed to be goods supplied without reference to any sample. Any recommendations or suggestions relating to the goods made by or on behalf of the Company either in technical literature or in response to a specific enquiry or otherwise are given in good faith but it is the sole responsibility of the Customer to satisfy itself as the suitability of goods for a particular purpose and the Company shall have no responsibility whatsoever to the Customer for any damage liability costs claims or expenses suffered by the Customer or any third party through following such recommendations.
7 The Company reserves the right to alter the specifications of any goods without prior references to the Customer provided that such alterations does not materially reduce the standard of the previous specifications.
8 All drawings, dimensions and weights provided by the Company are approximate only and the Company does not warrant or represent them to be correct.
9 (1) In the case of damaged goods or shortage of delivery or non-conformity with the order, written notice must be given by the Customer to the Company and where appropriate to the carrier concerned within five days, followed by a complete claim in writing within seven days, both from the date of delivery.
(2) Where goods are accepted from the carrier concerned without being checked, the delivery document must be signed “not examined”.
(3) In the case of loss of goods notice in writing must be given to the carrier and to the Company within fourteen days of the date of consignment.
(4) In default of compliance with the foregoing provisions of this Clause the Customer shall not be entitled to refuse to take delivery of the goods or any part of them
10 Where the contract is for delivery in instalments defects in quality in any delivery shall not be a ground for cancellation of the remainder of the contract.
Time for Delivery
11 Where a period is named for delivery and is not extended by mutual agreement in writing then the Company reserves the right to require the Customer to take delivery within that period.
12 The Company reserves the right to make partial deliveries.
13 Although the Company will use its best endeavours to deliver goods at the rate and at the time quoted for delivery, it shall not be liable for any loss or damage arising from its failure to do so.
14 Deliveries may be wholly or partially suspended and the time of such suspension added to the original contract period in the event of a stoppage, or delay or interruption of work in the establishment of either the Company or the manufacturer or the Customer during the delivery period as a result of strikes, lock-outs, trade disputes, breakdown, accident or any case whatsoever beyond the control of the Company the Manufacturer or the Customer respectively.
Liability and Indemnity
15 The Company shall not be liable to the Customer and the
Customer shall indemnify the Company from and against all actions, costs, claim, and demands of whatever nature made against the Company for any loss and damage including consequential loss or damage caused:
(1) By failure of the Customer or its employees to observe the directions and advice given by the Company in their instruction manuals or otherwise in relation to any goods supplied:
(2) By any defect arising out of the use of or in the quality of any goods supplied or in such goods not being fit for any purpose unless such use quality or fitness for purpose was indicated in the Company’s specifications for goods of their description.
(3) By any failure of the goods supplied to accord with any recommendations of the Company made in good faith but not contained in the Company's specifications.
(4) By any defect or deficiency in the goods where the failure of the Customer to comply with the conditions for acceptance and delivery contained in Clause 9 hereof has prevented a proper verification and proof of such defects or deficiency.
(5) By the use of any goods otherwise than with the stated capacity of the same as stated in the Company's specification or by the lack of proper maintenance of the goods after delivery or the failure to provide safety in accordance with Clause 4.
16 The liability of the Company hereunder shall further be limited to the cost of repair of (at the option of the Company) the replacement of any goods found to be defective under the warranty referred to in condition 5. The Company shall not be liable to the Customer for any incidental or consequential damages or loss arising from a defect in the goods other that consequential loss following directly from death or personal injury arising as a result of negligence of the Company or its employees or sub-contractors.
17 The Customer warrants to the Company to the intent that such warranty shall be condition of the sale that the goods are intended for use by the Customer within the United Kingdom.
Passing of Risk
18 Risk shall, unless the contract otherwise provides, pass to the Customer on the goods leaving the Company’s premises.
19 (1) Property in the goods shall pass to the Customer and the full legal and beneficial ownership of the goods shall remain with the Company unless and until the Company has received payment in full for the goods. The Company shall retain a lien on goods supplied until the Company has received payment in full for those goods.
(2) Until property in the goods has passed to the Customer in accordance with the proceeding Sub-Clause and without prejudice to the Company's rights:
(a) the Customer shall insure the goods which are on or at the Customer’s premises or have been delivered elsewhere on the instructions of the Customers against all risks and shall, if required to do so in writing by the Company, prove to the Company that such insurance has been effected:
(b) the customer shall not remove any nameplates , markings or signs affixed to the goods by the manufacturer or by the Company and shall if required to do so in writing by the Company keep the goods marked and apart from all other goods so as to distinguish
and separate the goods from the other goods:
(3) The exercise by the Company of its rights against the Customer under this clause shall be without prejudice to any rights of the Company to claim against the Customer for additional losses suffered by the Company as a result of the Customer’s breach and this clause shall not prejudice or affect the right of the Company to claim from the Customer the price of the goods.
Terms of Payment
20 (1) unless otherwise stated on the Company's confirmation of order, payment shall be net cash due:
(a) Prior to delivery in the case of equipment: and
(b) Strictly 30 days Net in the case of parts and service.
(2) If the Customer cannot accept delivery when the goods are completed and ready for delivery then the time when the goods are ready shall count as the delivery date and payments shall be made accordingly unless otherwise agreed in writing by the Company.
21 If before delivery is effected there arises reasonable grounds for the Company to believe that the Customer will not be able to fulfil its payment obligations the Company shall have the right to demand from the Customer security for payment. From the date of demand for security until the date of unsatisfactory provisions of the same the Company shall be under no obligation to do any act to implement any part of the contract. If security acceptable to the Company is not offered within such reasonable period as may be specified by the Company, the Company may terminate the contract without further liability on its part but the Customer shall be liable to the Company in respect of any losses (including loss of profit) incurred by the Company as a consequence of such determination.
22 The Company shall have a general lien on all goods and property of the Customer in the possession of the Company in respect of all sums due from the Customer to the Company but unpaid and the Company shall be entitled giving 14 days notice in writing to the Customer to dispose of such goods or property and to apply the proceeds thereof towards reduction of such debt.
23 In the event of there being any monies due from the Company to the Customer on any account whatsoever then not withstanding any rule of law or course of practice or contract to the contrary any rights which the customer might have against the Company to the Customer against the purchase price of the goods is hereby excluded.
24 (1) All prices are subject to alteration by the Company without notice and the contract price will be that ruling at the date of delivery.
(2) All prices are exclusive of V.A.T. and V.A.T will be payable at rates and in accordance with Government legislation in force at the time of supply.
Proper Law of Contract
25 These conditions and any contract made in accordance with them shall be subject to and construed in accordance with English Law.
Severability of Provisions
26 Any provision of a Clause or Sub-clause of these conditions which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of the remaining Clause or Sub-Clause hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
Termination of Contract
27 If the Customer shall make default in or commit a breach of the contract or of any other of its obligations to the Company, or if any distress execution, inhibition, diligence, arrestment, poinding or other process is levied or enforced upon or against any of the Customer’s property or assets or if the Customer shall make or offer to make any voluntary arrangement with its creditors or becomes subject to administration order or (being an individual or firm) becomes bankrupt, notour bankrupt, or a petition or application is presented to a court of competent jurisdiction for their sequestration or (being a Company) goes into liquidation or a petition or application is presented to a court of competent jurisdiction for the winding up of the Customer or an administrative receiver, receiver of administrator is appointed of the whole or any part of the undertaking or assets of the Customer then and in any such case the Company shall have the right forthwith to terminate any contact then subsisting upon written notice of such termination being posted to the Customer’s office or (being an individual) his last known address in the United Kingdom. The contract shall be deemed to have been determined without prejudice to any claim or right the Company may otherwise make or exercise.
PARTS EXCHANGE AND REMANUFACTURED UNITS SPECIAL CONDITIONS OF SALE
28 (1) Parts exchanged and remanufactured units will be invoiced in full at the time of sale at the price shown in the parts exchange and remanufactured units price list. If a similar unit is returned to us at the time of exchange or within fourteen days of the exchange having taken place, then if the used unit is returned in an acceptable condition, a credit will be raised for the used unit. For the used unit to be in an acceptable condition it must be in an assembled state and not deficient of any major parts.
(2) The old used unit, if accepted in exchange, will immediately become the property of the Company.
(3) The Company warrants part exchange units and remanufactured units sold by it to be free from defects in material and workmanship under normal usage conditions for a period of six months from the date of sale, unless specifically stated otherwise. During this period:-
(a) if the exchange or remanufactured unit has been fitted by the Company they will repair or replace the unit at its discretion and at its cost, including labour and transportation cost:
(b) if the unit has been fitted by the Customer then any claim under this warranty is limited to the cost of repair or replacement of the defective unit at the Company’s discretion , and does not include any cost of transportation or removal and refitting by the Customer, ie: no consequential loss claims will be considered.