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of three years from the date of delivery Gledhill will replace, free of charge, any plate heat exchanger fitted in
the appliance as original equipment in which scale formation occurs that materially reduces the effectiveness
of the plate heat exchanger. This guarantee does not extend to any other component installed within the
Gledhill appliance or elsewhere in the Purchasers domestic water system.
9.4.
9.4.1. In respect of goods supplied by us and in respect of any installation work carried out by or on our behalf, our
entire liability and the purchaser’s sole remedies (subject to the Guarantees) shall be as follows:-
(a) We accept liability for death or personal injury to the extent that it results from our negligence or that of
our employees
(b) Subject to the other provisions of this clause 9 we accept liability for direct physical damage to tangible
property to the extent that such damage is caused by our negligence or that of our employees, agents or
subcontractors.
(c) Our total liability to the purchaser over and above any liability to replace under the Guarantees (whether
in contract or in tort including negligence) in respect of any one cause of loss or damage claimed to result
from any breach of our obligations hereunder, shall be limited to actual money damages which shall not
exceed £20,000 provided that such monetary limit shall not apply to any liability on the part of ourselves
referred to in paragraph (a) above
(d) Except as provided in paragraph (a) above but otherwise not withstanding any provision herein contained
in no event shall we be liable for the following loss or damage howsoever caused and even if foreseeable
by us or in our contemplation:-
(i) economic loss which shall include loss of profits, business revenue, goodwill or anticipated savings
(ii) damages in respect of special indirect or consequential loss or damage (other than death, personal
injury and damage to tangible property)
(iii) any claim made against the purchaser by any other party (save as expressly provided in paragraph (b)
above)
(e) Except in respect of our liability referred to in paragraph (a) above no claim may be made or action
brought (whether in contract or in tort including negligence) by the purchaser in respect of any goods
supplied by us more than one year after the date of the invoice for the relevant goods.
(f) Without prejudice to any other term we shall not be liable for any water damage caused directly or
indirectly as a result of any leak or other defect in the goods. We cannot control the conditions of use of
the goods or the time or manner or location in which they will be installed and the purchaser agrees to
be fully responsible for testing and checking all works which include the goods at all relevant times (up
to, including and after commissioning) and for taking all necessary steps to identify any leaks and prevent
any damage being caused thereby.
(g) Nothing in these Conditions shall confer on the purchaser any rights or remedies to which the purchaser
would not otherwise be legally entitled
10. LOSS OR INJURY
Notwithstanding any other provision contained herein the purchaser’s hereby agree to fully indemnify us against
any damages losses costs claims or expenses incurred by us in respect of any claim brought against us by any third
party for:-
(a)
any loss injury or damage wholly or partly caused by any goods supplied by us or their use.
(b)
any loss injury or damage wholly or partly caused by the defective installation or substandard workmanship
or materials used in the installation of any goods supplied by us.
(c)
any loss injury or damage in any way connected with the performance of this contract.
(d)
any loss resulting from any failure by the purchaser to comply with its obligations under these terms as to
install and/or check works correctly.
PROVIDED
that this paragraph will not require the purchaser to indemnify us against any liability for our own acts
of negligence or those of our employees agents or sub-contractors
FURTHER
in the case of goods supplied by us which are re-sold and installed by a third party by the purchaser it will
be the sole responsibility of the purchaser to test the goods immediately after their installation to ensure that inter
alia they are correctly installed and in proper working order free from leaks and are not likely to cause any loss injury
or damage to any person or property.
11. VARIATION OF WARRANTY AND EXCLUSION
Should our warranty and exclusion be unacceptable we are prepared to negotiate for variation in their terms but
only on the basis of an increase in the price to allow for any additional liability or risk which may result from the
variation.
Purchasers are advised to insure against any risk or liability which they may incur and which is not covered by our
warranty.
12. RISK AND RETENTION OF TITLE
(a)
goods supplied by us shall be at the Purchaser’s risk immediately upon delivery to the Purchaser or into
custody on the Purchaser’s behalf or to the Purchaser’s Order. The Purchaser shall effect adequate insurance
of the goods against all risks to the full invoice value of the goods, such insurance to be effective from the time
of delivery until property in the goods shall pass to the Purchaser as hereinafter provided.
(b)
property in the goods supplied hereunder will pass to the Purchaser when full payment has been made by the
Purchaser to us for :-
(i) the goods of the subject of this contract.
(ii) all other goods the subject to of any other contract between the Purchaser and us which, at the time of
payment of the full price of the goods sold under this contract, have been delivered to the Purchaser but
not paid for in full.
(c)
until property in the goods supplied hereunder passes to the Purchaser in accordance with paragraph (2)
above.
(i) the Purchaser shall hold the goods in a fiduciary capacity for us and shall store the same separately from
any other goods in the Purchaser’s possession and in a manner which enables them to be identified as our
goods.
(ii) the Purchaser shall immediately return the goods to us should our authorised representative so request.
All the necessary incidents associated with a fiduciary relationship shall apply.
(d)
the Purchaser’s right to possess the goods shall cease forthwith upon the happening of any of the following
events, namely :-
(i) if the Purchaser fails to make payment in full for the goods within the time stipulated in clause 4 hereof.
(ii) if the Purchaser, not being a company, commits any act of bankruptcy, makes a proposal to his or her
creditors for a compromise or does anything which would entitle a petition for a Bankruptcy Order to be
presented.
(iii) if the Purchaser, being a company, does anything or fails to do anything which would entitle an
administrator or an administrative receiver or a receiver to take possession of any assets or which would
entitle any person to present a petition for winding up or to apply for an administration order.
(e)
the Purchaser hereby grants to us an irrevocable licence to enter at any time any vehicle or premises owned
or occupied by the Purchaser or in the possession of the Purchaser for the purposes of repossessing and
recovering any such goods the property in which
has remained in us under paragraph (2) above. We
shall not be responsible for and the Purchaser will
indemnify us against liability in respect of damage
caused to any vehicle or premises in such repossession
and removal being damaged which it was not
reasonably practicable to avoid.
(f)
notwithstanding paragraph (3) hereof and subject to
paragraph (7) hereof, the Purchaser shall be permitted
to sell the goods to third parties in the normal course
of business. In this respect the Purchaser shall act
in the capacity of our commission agent and the
proceeds of such sale :-
(i) shall be held in trust for us in a manner which
enables such proceeds to be identified as such,
and :
(ii) shall not be mixed with other monies nor paid into
an overdrawn bank account.
We, as principal, shall remunerate the Purchaser as
commission agent a commission depending upon
the surplus which the Purchaser can obtain over and
above the sum, stipulated in this contract of supply
which will satisfy us.
(g)
in the event that the Purchaser shall sell any of the
goods pursuant to clause (6) hereof, the Purchaser
shall forthwith inform us in writing of such sale and
of the identity and address of the third party to whom
the goods have been sold.
(h)
if, before property in the goods passes to the
Purchaser under paragraph (2) above the goods are or
become affixed to any land or building owned by the
Purchaser it is hereby agreed and declared that such
affixation shall not have the effect of passing property
in the goods to the Purchaser. Furthermore if, before
property in the goods shall pass to the Purchaser
under paragraph (2) hereof, the goods are or become
affixed to any land or building (whether or not owned
by the Purchaser), the Purchaser shall:-
(i) ensure that the goods are capable of being removed
without material injury to such land or building.
(ii) take all necessary steps to prevent title to the
goods from passing to the landlord of such land
or building.
(iii) forthwith inform us in writing of such affixation
and of the address of the land or building
concerned.
The Purchaser warrants to repair and make good
any damage caused by the affixation of the goods
to or their removal from any land or building and
to indemnify us against all loss damage or liability
we may incur or sustain as a result of affixation or
removal.
(i) in the event that, before property in the goods
has passed to the Purchaser under paragraph (2)
hereof, the goods or any of them are lost, stolen,
damaged or destroyed :-
(ii) the Purchaser shall forthwith inform us in writing
of the fact and circumstances of such loss, theft,
damage or destruction.
(iii) the Purchaser shall assign to us the benefit of any
insurance claim in respect of the goods so lost,
stolen, damaged or destroyed.
13. NON-PAYMENT
If the Purchaser shall fail to make full payment for the goods
supplied hereunder within the time stipulated in clause 4
hereof or be in default of payment for any other reason then,
without prejudice to any of our other rights hereunder, we
shall be entitled to stop all deliveries of goods and materials
to the Purchaser, including deliveries or further deliveries of
goods under this contract. In addition we shall be entitled
to terminate all outstanding orders.
14. VALUE ADDED TAX
All prices quoted are exclusive of Value Added Tax which
will be charged at the rate ruling at the date of despatch of
invoice.
15. TRADE SALES ONLY
We are only prepared to deal with those who are not
consumers within the terms of the Unfair Contract Terms
Act 1977, the Sale of Goods Act 1979 and the Supply of
Goods and Services Act 1982. Accordingly any person who
purchases from us shall be deemed to have represented that
he is not a consumer by so purchasing.
16. JURISDICTION
The agreement is subject to English law for products
delivered in England and Scottish law for products delivered
in Scotland and any dispute hereunder shall be settled in
accordance therewith dependent upon the location.
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