TERMS & CONDITIONS OF SALE
Kärcher UK Ltd
1 APPLICABLE TERMS
1.1 Any quotation given by the Seller is an invitation to the Buyer to make an offer only and no order placed by the Buyer with the Seller in pursuance of a quotation or otherwise shall be binding on the Seller unless and until it is accepted in writing by the Seller’s acceptance of order form or despatch note or delivery note, or the goods are despatched or the work is commenced.
1.2 Any contract made with the Seller for the sale of goods or work shall incorporate and be subject to these conditions and any representation or warranty, written or orally made or given prior to the contract is hereby expressly excluded and all brochures, specifications, drawings, catalogues, particulars, shapes, descriptions and illustrations, price lists and other advertising matter are intended only to present a general idea of the goods described therein.
1.3 In the event that no quotation is given by the Seller and the Seller has received an order from the Buyer then provided that the Buyer shall have notice of these conditions, in such circumstances all goods are sold and all work is done subject to these conditions.
1.4 Unless otherwise agreed in writing, the Seller reserves the right to despatch or deliver goods of a modified design provided that any difference does not make the goods unsuitable for any purpose the Buyer has made known to the Seller.
1.5 The Seller reserves the right to subcontract the fulfilment of the order including any installation or any part thereof.
2 THE PRICE
All prices are exclusive of transport, packing and VAT. Costs of transport and packing will be added to all products supplied. VAT will be charged at the rate applicable at the date of invoice. In case of small orders the Seller shall be entitled to make a minimum order charge or to add a surcharge.
All accounts are payable on demand and are strictly net. If no demand is made, then all accounts must be paid within 30 days of invoice date. If at the date on which the Seller is ready to despatch or deliver the goods the Buyer delays delivery for any reason, the Seller may present invoices for full settlement with 30 days of that date, in default of payment and without prejudice to any other rights or remedies the Seller reserves the right to demand payment of all outstanding balances whether or not due and/or cancel all outstanding orders. Interest shall be charged on outstanding balances at the rate of 1.25% per month. The Buyer shall not be entitled to withhold or set-off payment for goods delivered or work done for any reason whatsoever.
This contract shall be subject to the provision that if at any time thereafter the Seller is advised of circumstances casting doubt on the Buyer’s creditworthiness or satisfactory security for payment is not given on request, the Seller may require payment of the whole or part of the purchase price from the Buyer in advance and pending such payment the contract shall be suspended. In the event of such advance payment not being made within a reasonable period stipulated by the Seller, the Seller may cancel the Buyer’s order without liability and the Buyer shall be responsible for any resulting loss to the Seller.
The risk in respect of all goods sold under the contract shall pass to the Buyer upon the despatch of the goods by the Seller from its premises notwithstanding agreement by the Seller to bear the cost of delivery or to deliver the goods itself. In any event the property in the goods shall not pass to the Buyer except as provided in clause 6 hereof.
6 TITLE RETENTION
6.1 Until the purchase price of the goods comprised in this or any other contract between the Buyer and the Seller shall have been paid or satisfied in full (if by cheque then only upon clearance):-
6.1.1 The property in the goods comprised in this contract remain vested in the Seller (notwithstanding the delivery of the same and the passing of the risk therein).
6.1.2 The Buyer shall store the goods in such a way that they can be readily identified as being the Seller’s property.
6.1.3 The Buyer shall on request inform the Seller of the precise location of each item of the goods identified where applicable by its serial number, by supplying the Seller at its expense within seven days of its request with a written schedule of the said locations.
6.1.4 The Buyer 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 the Seller’s rights on the following conditions:-
18.104.22.168 The Seller may at any time revoke the Buyer’s said power of sale in the circumstances set out in Clauses 3 and 4 of these conditions.
22.214.171.124 The Buyer’s power of sale shall automatically cease in any of the circumstances set out in Clause 13 of these conditions.
126.96.36.199 The Buyer shall notify the Seller without delay of any attachment of the goods or actions by third parties which might infringe the Seller’s title to the goods.
6.1.5 Upon determination of the Buyer’s power of sale the Seller shall be entitled by itself its servants or agents to enter upon any of the Buyer’s premises for the purpose of removing and repossessing such goods or their proceeds of sale and the Seller shall be entitled to claim from the Buyer the costs and expenses incurred by the Seller in and ancillary to the process of such removal and repossession.
6.1.6 Until title in the goods has passed to the Buyer the Buyer shall not purport to be the owner of the goods and shall not show such goods as stock in its accounts.
6.1.7 The Buyer 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 the Seller shall be entitled to call for details of the insurance policy. If the Buyer shall not insure the goods or shall fail to supply details of its insurance policy on demand to the Seller the Buyer shall reimburse the Seller for the cost of any insurance which the Seller 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.
6.2 Nothing in these conditions shall:
6.2.1 entitle the Buyer to return the goods or to delay payment therefor; or
6.2.2 constitute or be deemed to have constituted the Buyer as the Seller’s agent otherwise than for the purpose of this clause;
6.2.3 or render the Seller liable to any third party for any unauthorised representation or warranty made or given by the Buyer to such third party in relation to the goods;
6.2.4 prevent the Seller from maintaining an action for the price notwithstanding that the property in the goods may not have passed to the Buyer.
7 TITLE RETENTION (SCOTLAND)
In the case of sales of goods in Scotland, clause 6.1 hereof shall not apply, and in place thereof there shall be substituted the following clause: “6.1(a) Until the purchase price of the goods comprised in this contract between the Buyer and the Seller shall have been paid in full:”
8.1 Any dates given in the contract for despatch or delivery of goods or completion of the work (as the case may be) shall constitute estimates of expectation only and shall not be binding unless the contract otherwise expressly provides in writing signed by the Seller and subject to the provisions of sub-clauses 8.4 and 8.5 below the Buyer shall accordingly accept delivery of the goods when tendered and the work when completed.
8.2 The method and route of despatch of the goods shall be selected by the Seller which shall use its best endeavours to take into account in such selection the preferences of the Buyer. The Seller shall not be obliged to insure the goods against loss or damage in transit.
8.3 If notwithstanding the Seller’s best endeavours the Seller fails to despatch or deliver the goods or to complete the work by such date, such failure shall not constitute a breach of the contract and the Buyer shall not be entitled to claim compensation for such failure or for any consequential loss or damage resulting therefrom.
8.4 Subject to the provisions of sub-clause 8.3 above, where despatch or delivery or completion of the work is delayed by more than 4 weeks beyond the date given in the contract, the Buyer shall grant the Seller a reasonable extension period and if upon the expiry of the extension period the goods have not been despatched or delivered or the work has not been completed, the Buyer shall be entitled to withdraw from the contract upon written notice PROVIDING that if the Seller is prevented or hindered from supplying the goods or any part thereof or completing the work by any circumstances beyond its reasonable control further performance of the contract shall be suspended for so long as the Seller is prevented or hindered from supplying the goods or any part thereof or completing the work by any circumstances beyond its reasonable control further performance of the contract shall be suspended for so long as the Seller shall be so prevented or hindered. In the event of the performance of the contract being suspended for more than 3 consecutive months the Buyer may forthwith by notice in writing terminate the contract and in such circumstances the Buyer shall pay at the contract rate for all goods sold or work done by the Seller to the actual date of termination.
8.5 If at the date on which the Seller is ready to despatch or deliver the goods the Buyer delays acceptance thereof for any reason whatsoever, the goods will be stored by the Seller but the Buyer shall pay to the Seller an amount equivalent to what the Buyer would be liable to pay if the goods had in fact been despatched or delivered together with reasonable storage charges for the period of delay and the cost of any additional handling and transporting incurred. If on the expiry of 3 months after the date on which the Seller is ready to despatch or deliver the goods the Buyer has not accepted the goods, the Seller reserves the right immediately to cancel the Buyer’s order. This cancellation shall entitle the Seller to dispose of the goods and obtain from the Buyer compensation for loss of profit in addition to any other sums due to the Seller under these conditions.
8.6 Claims in respect of apparent incomplete or incorrect supplies or of goods damaged in transit must be notified to the carrier and to the Seller as soon as possible and in any event not later than 3 working days after receipt of the goods at the place of destination.
8.7 Claims in respect of non-delivery of goods must be made as soon as possible and in any event within 3 working days of the receipt by the Buyer of the Seller’s invoice.
9 CONTRACTS FOR WORK
If the contract is for and includes work to be done by the Seller whether of installation commissioning repair rectification or improvement, then unless the contract otherwise provides the following additional provisions shall apply thereto:
9.1 The Seller shall be obliged to carry out such work only during the Seller’s normal working hours, if the Buyer requests that overtime be worked and the Seller agrees thereto such overtime shall be paid for by the Buyer at the rate stipulated by the Seller.
9.2 If the work is to be carried out at the Buyer’s premises or on the Buyer’s request at the premises of any other person then the Buyer shall undertake to provide or to procure the provision of
9.2.1 proper and safe storage and protection of all goods, tools, plant equipment and materials on site
9.2.2 free and safe access to the site and to the place at which the work is to be carried out
9.2.3 all facilities and services necessary to enable such work to be carried out safely and expeditiously
9.2.4 (if such work includes the installation of any goods) all builders work, foundations, cutting away and making good required and the ready availability of all plan and equipment so as to permit the goods to be tested forthwith on completion of such work.
9.3 The Buyer shall pay to the Seller the amount of any expense incurred by the Seller by reason of any breach by the Buyer of its undertakings in sub-clause 9.2 above (but without prejudice to the Seller’s rights to recover further damages therefor) and a certificate of the Seller’s auditors certifying such amounts shall be conclusive and binding upon the Buyer and the Seller.
10.1 Defects shall be notified as soon as they are discovered but in any event:-
10.1.1 In the cases of “wear parts” including nozzles, brushes, motor brushes, spark plugs, belts, hoses, wheels, seals, electrodes, fluids, plastic couplings, filters and plastic parts, not later than 28 days after the delivery of the goods to the end user, or (in the case of fixed installations of goods), their delivery, installation and commissioning for the end user.
10.1.2 In the case of items of the goods other than those listed in clause 10.1.1 hereof no later than 12 months after the delivery of the goods to the end user or (in the case of fixed installation of goods), the delivery, installation and commissioning of the goods for their end user or in the case of multishift operation of the goods (meaning operation of more than 8 hours in each 24 hour period) not later than 6 months after such delivery or commissioning.
10.2 The Seller shall make good either by repair or replacement or renewal at its option defects which under proper storage and use appear in the goods or work within the time limits set out in Sub-Clause 10.1 above and which arise solely from faulty material or workmanship provided that:-
10.2.1 such defects have not been caused by misuse, neglect, accident, improper storage installation or handling, frost damage or by repair or alteration not effected by the Seller (including the attachment or connection to the goods of any devices or accessories other than those distributed or officially recommended by the Seller) or non-compliance with the Seller’s operators’ instructions manual or the use in the operation of the goods of incorrect electrical supply voltage, contaminated water supply or unsuitable chemicals.
10.2.2 The Buyer shall pay to the Seller the reasonable cost (as certified by the Seller) of any examination of such goods as a result of which the Seller shall not be liable under the terms hereof.
10.2.3 In the event that the Buyer shall agree with the Seller that the Buyer will provide the labour necessary to carry out such repair replacement or renewal, then the Buyer shall be entitled to be paid for the said labour at a rate not exceeding the Seller’s current labour rate.
10.3 The Seller’s liability under Clause 10.2 hereof shall be in lieu of any warranties and conditions whether express or implied by statute common law or otherwise however, which warranties and conditions are hereby expressly excluded.
10.4 WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, NOTHING HEREIN CONTAINED SHALL OPERATE TO EXCLUDE ANY WARRANTY OR CONDITION IMPLIED BY STATUTE IN THE EVENT OF THE BUYER DEALING AS A “CONSUMER” AS DEFINED BY SECTION 12 OF THE UNFAIR CONTRACT TERMS ACT 1977. IN SUCH A CASE THE BUYER’S STATUTORY RIGHTS ARE UNAFFECTED BY THESE TERMS AND CONDITIONS.
10.5 Save as aforesaid and save in respect of death or personal injury resulting from the negligence of the Seller its Servants or Agents, the Seller shall not be liable for any claim or claims for direct or indirect consequential or incidental injury loss or damage made by the Buyer against the Seller whether in contract or tort (including negligence on the part of the Seller its Servants or Agents) arising out of or in connection with any defect in the goods or work or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract or breach of a fundamental term thereof) of the Seller its Servants or Agents in the performance of the contract.
10.6 The Seller’s obligations contained in this Clause shall apply only to the buyer but the Buyer shall not be prevented from having recourse to them solely by reason of the Buyer selling the goods in the normal course of its business to a third party. Application for transfer to subsequent purchasers of the goods of the benefit of this warranty for its unexpired period will be considered by the Seller upon submission of a written request.
10.7 The Buyer accepts as reasonable that the Seller’s total liability for any goods or work which are defective shall be as set out in these conditions: in fixing that limit the Seller has had regard to the contract price of the goods, the nature of the goods, the use they will receive and the resources available to each party including servicing facilities and insurance cover, to meet any liability.
The Seller retains a general lien on any of the Buyer’s equipment or other goods on the Seller’s possession for any unpaid balance the Buyer may owe to the Seller.
12 HEALTH AND SAFETY
The buyer’s attention is drawn to the provisions of Section 6 of the Health and Safety at Work Act 1974. The Seller will make available on written request such information or the design and construction of the goods as is in its possession to ensure that as far as is reasonably practicable it is reasonably safe and without risk to health when properly used.
13 INSOLVENCY AND BREACH OF CONTRACT
In the event of any breach of these conditions not being remedied by the Buyer within 30 days of the Seller’s written notice requesting such remedy or upon the Buyer entering into any composition or arrangement with its creditors or passing a resolution for winding up the entering into liquidation (whether voluntary or compulsory) or any similar arrangement or a Receiver is appointed of the Buyer’s assets, the Seller shall be entitled without prejudice to its other rights hereunder to suspend all further deliveries and/or determine the contract or any unfulfilled part thereof and the Buyer shall be responsible for any resulting loss to the Seller.
The copyright subsisting or which subsequently subsists in all documents, drawings, specifications, designs, programmes or any other material prepared by the Seller whether readable by humans or by machines shall belong to the Seller absolutely and they shall not be reproduced or disclosed or used in its original or translated form by the Buyer without the Seller’s written consent for any purpose other than that for which they were furnished.
The Buyer shall not without the prior written consent of the Seller:
15.1 save for the purposes of describing the goods use or permit to be used any of the trade marks, service marks, trade or brand names or any other intellectual property rights of the Seller including for the avoidance of doubt and without prejudice to the generality of the foregoing as or as part of the business, trading or corporate name of the Buyer; or
15.2 allow any trade mark or service mark of the Seller or other word or mark applied to the goods (or the packaging thereof) to be obliterated, obscured or omitted or any further word or mark to be added thereto.
Notwithstanding any implied warranty or condition as to title or otherwise in relation to the goods supplied hereunder, the Seller shall not be liable to indemnify the Buyer in respect of any claim made or threatened against the Buyer by a third party whether by legal proceedings or otherwise based on a right claimed under letters, patent, trade-mark, copyright (whether registered as a design or not) or breach of confidence unless:
16.1 the Seller shall have been promptly notified of the claim or threat and no admissions shall have been made by the Buyer such as would prejudice the defence of any such claim or threat;
16.2 the goods shall have been designed by the Seller or made to its design and in any event the Seller’s liability shall be limited to damages and costs awarded by a court of competent jurisdiction in proceedings conducted in accordance with the wishes of the Seller or such sum as may be paid in compromise of such proceedings with the assent of the Seller.
17 BUSINESS TO BUSINESS SALES: END OF LIFE OBLIGATIONS
17.1 In the event that regulations are introduced at any time relating to the disposal, reuse or recycling of equipment, whether pursuant to Directive 2002/96/EC on waste electrical and electronic equipment or otherwise, and the costs of complying with such regulations are not specifically provided for within the purchase price then, to the extent that the law permits, the responsibility for compliance with such regulations and the costs thereof shall rest with the Buyer.
17.2 The Buyer shall indemnify the Seller and keep the Seller indemnified against all costs, expenses, damage or other losses incurred or suffered, demands or proceedings made against the Seller arising from a breach by the Buyer of this clause 17.
18.1 Notices - Any notice required to be given hereunder by either party to the other shall be sufficiently given if it is in writing and signed by some person duly authorised by the party giving it and sent by first class pre-paid or recorded delivery post to the last known address of the party to whom notice is to be given and shall be deemed to have been duly served 48 hours from the time of posting and in proving such service it shall be sufficient to prove that the notice was properly addressed and posted in accordance with these provisions.
18.2 Waiver- The waiver by the Seller of any breach of any term hereof shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
18.3 Severance - Should one clause hereof be invalid the provisions of the remainder hereof shall not be affected and in such case the parties hereto shall co-operate to agree replacement terms which are legally valid in order to achieve as nearly as possible the original intentions of the parties particularly regarding the economic effect of such clause.
18.4 Titles - the titles of the clauses hereof shall not be taken into account in the construction hereof.
18.5 Governing Law - Any contract in which these terms relate shall be governed by English Law and the parties shall submit to the sole jurisdiction of the English Courts. KAR 206