TERMS AND CONDITIONS OF SALE
IN THESE CONDITIONS, ‘THE COMPANY’ MEANS Michael Stewart Pressure Washers Ltd. THE ‘BUYER’ MEANS THE CUSTOMER, PERSON OR PERSONS SEEKING A QUOTATION, OR ENTERING, OR OFFERING TO ENTER INTO, ANY CONTRACT FOR THE PURCHASE OF GOODS OR SERVICE FROM THE COMPANY.
These terms and conditions do not apply to export transactions outside of the United Kingdom or Republic of Ireland, to which separate terms and conditions of sale apply.
The Company contracts on the conditions appearing herein and acceptance by the Company of any order or request from the Buyer shall be upon such conditions subject only to any variation agreed in writing by any authorised representative of the Company.
a) All quotations are subject to confirmation in writing by the Company on receipt of the order from the Buyer. It is only upon said written acceptance that the Contract will be formed and will become binding between the Company and the Buyer.
b) All sales by the Company will be subject to these terms and conditions and all terms and conditions appearing in the Buyers orders which are inconsistent herewith shall have no effect. Any variation of the terms and conditions as contained either herein and/or the order acknowledgement will become binding, only if confirmed in writing by an authorised representative of the Company, and any such variations will be referred to as special written terms and where there is conflict between the special written terms and the general terms as herein appear, the special written terms shall prevail.
c) No representation however made by the Company shall form part of any contract between the Company and the Buyer or be regarded as being a ground upon which the Buyer relied in entering into any contract unless such representation is made and given in writing by the Company.
d) If any legislation is compulsorily applicable to any business transacted or undertaken by the Company, these conditions shall as regards such business be read as subject to such legislation and nothing in these conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities, duties or liabilities under such legislation.
e) The Company is a business to business supplier of product and services. Notwithstanding the foregoing, nothing in these terms and conditions of sale shall affect the statutory rights of a buyer who deals as a private buyer.
Contracts for Services
If the contract is for and includes works/services to be done by the Company whether for repair or installation (if applicable), then the following additional provisions shall apply thereto:
a) The Company shall be obliged to carry out such works/services only during the Company’s normal working hours, if the Buyer requests that overtime be worked and the Company agrees thereto such overtime shall be paid for by the Buyer at the rate stipulated by the Company.
b) 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: –
i. proper and safe storage and protection of all goods, tools, plant equipment and materials on site
ii. free and safe access to the site and to the place at which the work is to be carried out iii. all facilities and services necessary to enable such work to be carried out safely and expeditiously
iv. (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 plant and equipment so as to permit the goods to be tested forthwith on completion of such work.
c) The Buyer shall pay to the Company the amount of any expense incurred by the Company by reason of any breach by the Buyer of its undertakings above (but without prejudice to the Company’s rights to recover further damages therefor) and a certificate of the Company’s auditors certifying such amounts shall be conclusive and binding upon the Buyer and the Company.
Delivery (or installation were applicable)
a) The Company will use its best endeavours to deliver all goods and services at the date agreed with the Buyer, but the Company shall not be liable for any expense, loss or damage whatsoever suffered by the Buyer as a result of the Company for whatever reason not delivering at the date or within the time so specified. Furthermore, any dates given in the contract for despatch or delivery of goods or completion of the works/services (as the case may be) shall constitute estimates of expectation only and shall not be binding unless the contract otherwise expressly provides in writing and signed by the Company and the Buyer shall accordingly accept delivery of the goods when tendered and the works/services when completed
b) If notwithstanding the Company’s best endeavours the Company fails to despatch or deliver the goods or to complete the works/services 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.
c) The method and route of despatch of the goods shall be selected by the Company which shall use its best endeavours to take into account in such selection the preferences of the Buyer. The Company shall not be obliged to insure the goods against loss or damage in transit and in absolutely no circumstances shall the Company be liable to the Buyer for any damage, losses or consequential losses to the goods caused during delivery and in transit. The risk of loss or damage caused to and in respect of all goods sold under the contract shall pass to the Buyer upon the despatch of the goods by the Company from its premises or on collection from the Company’s premsies by the Buyer, if delivery is organised by the Buyer
d) Should the delivery of the goods whether by the Company or an independent Carrier be prevented or hindered directly or indirectly by fire, the elements, war, civil commotion, industrial dispute, or any reason whatsoever beyond the reasonable control of the Company, then the time for delivery of the goods shall be extended for a reasonable period having regard to the effect of the delaying cause on the availability or delivery of the goods.
e) Subject to the provisions of paragraph b of the Delivery Clause as appears above, where despatch or delivery or completion of the works/services is delayed by more than 6 weeks beyond the date given in the contract, the Buyer shall grant the Company a reasonable extension period and if upon the expiry of the extension period the goods have not been despatched or delivered or the works/services has not been completed, the Buyer shall be entitled to withdraw from the contract upon written notice PROVIDING that if the Company is prevented or hindered from supplying the goods or any part thereof or completing the works/services by any circumstances beyond its reasonable control further performance of the contract shall be suspended for so long as the Company is prevented or hindered from supplying the goods or any part thereof or completing the works/services. 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 works/services done by the Company to the actual date of termination
If at the date on which the Company is ready to despatch or deliver the goods the Buyer delays acceptance thereof for any reason whatsoever, the goods will be stored by the Company but the Buyer shall pay to the Company 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 2 months after the date on which the Company is ready to despatch or deliver the goods the Buyer has not accepted the goods, the Company reserves the right immediately to cancel the Buyer’s order. This cancellation shall entitle the Company to dispose of the goods and obtain from the Buyer compensation for loss of profit in addition to any other sums due to the Company under these conditions
Suspension of Deliveries
The Company shall be entitled without prejudice to its other rights and remedies either to terminate wholly or partly any contract between itself and the Buyer or to suspend any further deliveries if.
a) any debt is overdue and unpaid by the Buyer to the Company:
b) the Buyer has rejected, returned or failed to take delivery of any goods tendered by the company otherwise than in accordance with the Buyers contractual rights:
c) the Buyer being a body corporate becomes insolvent, or passes a resolution or suffers an order of the court to be made for its winding up, or has a receiver appointed, being an individual or partnership becomes insolvent or suspends payment in whole or in part or processes or enter into any composition or arrangement with his creditors or has a receiving order in bankruptcy made against him.
The Company shall be entitled to exercise its aforesaid right of termination or suspension at anytime during which the event of default giving rise thereto has not ceased or been remedied.
Damage Shortages or Consequential Loss
a) If the Buyer alleges that the goods, or any part thereof, are not in accordance with agreed specification, the Buyer shall give notice to the Company by contacting its Customer Service Department.
· In case of alleged damage to, shortage of, or defect in the goods, or any part thereof, within three days of delivery.
· In case of alleged non-delivery or wrong delivery within seven days of dispatch and afford the company and its agents’ facilities to inspect the goods and investigate the complaint before the goods are used, processed, sold or otherwise dealt with.
b) Containers and packages containing goods alleged to be damaged shall be retained by the Buyer for inspection by the Company or its agents.
c) Subject to strict compliance with paragraphs (a) and (b) of this condition, and not otherwise, the Company shall replace defective or damaged goods or supply goods in case of a shortage or non-delivery (subject to condition a hereof) within a reasonable time.
d) Goods shall not be returned to the Company for credit without the Company’s prior approval.
The Company shall not in any circumstances whatsoever be liable for loss of profit, damage to plant, or any other expenditure or loss howsoever incurred on goods supplied nor for any other or additional consequential or special loss or damage sustained by the Buyer by reason of any breach of the contract by the Company.
a) Payment shall be made at the time specified. The amount of the price to be paid is that specified on the face of the invoice. That amount shall not be subject to any discount or reduction except as agreed by the Company. Prices advertised or quoted are subject to VAT and delivery. The price of products/components may be changed from that advertised. The Buyer should confirm the price before placing order.
b) The Company retains a general lien on any of the Buyer’s equipment or other goods in the Buyer’s possession for any unpaid balance the Buyer may owe to the Company.
c) The Buyer shall not be entitled to withhold payment of any amount payable under the contract because of any disputed claim of the Buyer nor shall the Buyer be entitled to set off any amount payable under the contract to the Company any monies which are not immediately payable by the Company or for which the Company disputes liability.
d) The Company accept payment by bank transfer, cheque, credit/debit card or cash. Cheque payments may be entitled to a 3 day clearing at bank before goods can be released.
e) Goods bought on credit must be paid for within 30 days from invoice date (Unless agreed differently in writing). The Company maintains the right to share customer credit history information with relevant credit agencies. Use of credit account facilities with the Company is deemed to be contractual acceptance of these terms and conditions of sale in general. If at any time from the date on which the Buyer enters into a contract with Company, as per the terms and conditions herein appearing, the Company is advised of circumstances casting doubt on the Buyer’s creditworthiness or satisfactory security for payment is not given on request, the Company 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 Company, the Company may cancel the Buyer’s order without liability and the Buyer shall be responsible for any resulting loss to the Company.
f) The Company remains owners of the goods that the Buyer purchases until full payment is received by the Company from the Buyer, notwithstanding any delivery of same and the passing of the risk therefor. The Company maintains the right to retrieve and resell goods if they are not paid for within the time limits stipulated herein and as shown on any invoice given to the Buyer by the Company.
g) In addition and until full payment is made, for the period of time when the ownership of the goods shall still be vested in the Company, the Buyer: –
a. Shall store the goods in such a way that they can be readily identified as being the Company’s property
b. Shall on request inform the Company of the precise location of each item of the goods identified where applicable by its serial number, by supplying the Company, at the Buyer’s expense and within 7 days of the Company’s request, with a written schedule of the said locations
c. Shall insure the goods against theft or any damage howsoever caused until their price has been paid in full by the Buyer to the Company. The Company shall be entitled to call for details of the insurance policy. If the Buyer does not insure the goods or shall fail to supply details of its insurance policy on demand to the Company, the Buyer shall reimburse the Company for the cost of any insurance which the Company 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, by the Buyer, of their full purchase price.
h) Until full payment is made by the Buyer to the Company and the title in the goods has therefore passed to the Buyer upon such full payment being made to the Company,
the Buyer shall not purport to be the owner of the goods and shall not show such goods as stock in its accounts and shall not present such goods for sale within the Buyer’s
i) Nothing in these conditions shall: –
i. entitle the Buyer to return the goods or to delay payment therefor, or
ii. constitute or be deemed to have constituted the Buyer as the Company’s agent; or
iii. render the Company 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; or
iv. prevent the Company from maintaining an action for the price notwithstanding that the property and ownership in the goods may not have passed to the
j) Buyer Under the Late Payment of Commercial Debts Regulations 2013, the company can exercise its statutory right to charge interest and an administrative charge on all overdue invoices.
Subject to the additional clauses hereinunder appearing in this paragraph entitled “Warranties” , all new machines are covered by a 12 month warranty period on parts only. Said Warranty period commencing on the date of delivery of the goods by the Company to the Buyer. Labour costs for onsite repair is not covered in these terms and are at the discretion of the Company. Labour to replace warranty parts will be covered when the goods are (meaning the Washer) returned to the Company’s facilities in Lisburn by the Buyer and at the Buyer’s expense. On sale of refurbished machines, a 3 month parts only warranty period exists. This warranty period only applies to the machines and the parts integrated within the foot print of the washer* under normal operation. Damage caused to parts due to weather conditions, contaminated fuel or wrong operational procedures for example will not be covered by this warranty.
*Lance and outlet/inlet hose items are not covered by this warranty.
The Company shall make good either by repair or replacement or renewal at its option and at its own discretion, part only defects which under proper storage and use appear in the goods or work within the twelve month warranty period herein, provided that:-
– 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 Company (including the attachment or connection to the goods of any devices or accessories other than those distributed or officially recommended by the Company) or non-compliance of the Company’s operators’ instructions manual or the use in the operation of the goods of incorrect electrical supply voltage, contaminated water supply or unsuitable chemicals. The Company’s liability hereunder 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.
The Buyer shall pay to the Company the reasonable cost (as certified by the Company) of any examination of such goods as a result of which the Company shall not be liable under the terms hereof.
a. Save as herein appears and save in respect of death or personal injury resulting from the direct negligence of the Company its Servants or Agents, the Company 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 Company whether in contract or tort (including negligence on the part of the Company its Servants or Agents) arising out of or in connection with any defect in the goods or works/services 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 Company its Servants or Agents in the performance of the contract or under the Company’s obligations under these Terms and Conditions.
b. The Company’s obligations contained in these Terms and Conditions shall apply only to the Buyer and shall not apply to any other third parties who are not a party to the contract made between the Company the Buyer as per the terms and conditions appearing herein. The Contracts (Rights of Third Parties) Act 1999 shall not apply to the contract made between the Company and the Buyer as per herein.
c. The Buyer accepts as reasonable that the Company’s total liability for any goods or services which are defective shall be as set out in these conditions.
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 Company’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 or entering into liquidation (whether voluntary or compulsory) or any similar arrangement or a Receiver is appointed of the Buyer’s assets, the Company 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 fully be responsible for any resulting loss to the Company.
The copyright subsisting or which subsequently subsists in all documents, drawings, specifications, designs, programmes or any other material prepared by the Company whether readable by humans or by machines shall belong to the Company absolutely and they shall not be reproduced or disclosed or used in its original or translated form by the Buyer without the Company’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 Company: –
– save for the purposes of describing the goods, use or permit to be used any of the trademarks, service marks, trade or brand names or any other intellectual property rights of the Company 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
– allow any trademark or service mark of the Company 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 Company 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:-
– the Seller has 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;
– the goods have been designed by the Company or made to its design
In any event, the Company’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 Company or such sum as may be paid in compromise of such proceedings with the assent of the Company
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.
The waiver by the Company of any breach of any term herein shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
The titles of the clauses and paragraphs hereof shall not be taken into account in the construction or interpretation hereof.
Survival of Causes of Action
The termination of the contract made between the Company and the Buyer as per the Terms and Conditions hereinunder appearing, howsoever occurring, shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination if any.
If any provision in these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions in these Terms and Conditions shall continue in full force and effect as if these Terms and Conditions had been entered into by the parties with the illegal or unenforceable provision eliminated.
A force majeure event is any event beyond the reasonable control of the Company (including strikes, traffic congestion, the downtime of any external line, or the Company’s inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If the Company is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then the company shall be relieved of its obligations during the period that such event continues and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than fourteen days, the Company may at its own discretion cancel the affected order or cancel the whole or any part of these terms and conditions of sale, without any liability to the Buyer whatsoever.
Cancellation of orders for turnkey solutions or products made specially will not be accepted. Cancellation of standard products cannot be cancelled unless agreed by a Company authorised representative.
Entire Contract/Terms and Conditions
These Terms and Conditions contain the entire contract agreement and understanding of the parties relating to the subject matter of the contract between the parties and the terms and conditions attaching to said contract as appearing herein and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral.
All contracts/transactions entered into between the Company and the Buyer shall be construed in accordance with the Laws of Northern Ireland.