LOTHIAN POWER CLEAN ON-LINE TERMS AND CONDITIONS
General Terms and Conditions
Please read these terms and conditions carefully before ordering any Products from our site. You should understand that by ordering any of our Products, you agree to be bound by these terms and conditions.
Please note that these terms and conditions only apply to orders from our OnlineShop website. Please also note that, although orders from our OnlineShop website may be fulfilled by other divisions of the Kärcher Group, these are the only terms and conditions which apply to such orders and any other terms and conditions (for example on the back of dispatch notes) should be ignored.
Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Products from our site.
1. Information about us
2. Your status
3. How the contract is formed between you and us
4. Our status
5. Consumer rights
6. Availability and delivery
7. Risk and title
8. Price and payment
9. Our returns policy
11. Our liability
12. Written communications
14. Transfer of rights and obligations
15. Events outside our control
18. Entire agreement
19. Our right to vary these terms and conditions
20. Law and jurisdiction
1. INFORMATION ABOUT US
We operate the website www.cleaningequipmentscotland.com. We are Lothian Power Clean (LPC) trading address at LPC 35 Caledonian Road Larkhall ML9 1EP. Our VAT number is GB 429 3387 29.
2. YOUR STATUS
Our site is only intended for use by people resident in the United Kingdom of Great Britain and Northern Ireland (Serviced Countries). We do not accept orders from individuals outside those countries.
By placing an order through our site, you warrant that:
(a) you are legally capable of entering into binding contracts; and
(b) you are at least 18 years old; and
(c) you are resident in one of the Serviced Countries; and
(d) you are accessing our site from that country.
3. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
After placing an order, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy a Product. All orders are subject to acceptance by us. The contract between us (Contract) will only be formed when we dispatch the Product.
4. OUR STATUS
We may also provide links on our site to the websites of other sellers, whether affiliated with us or not. We cannot give any undertaking that sellers to whose website we have provided a link on our site will be able to fulfil your order or that any products purchased from such sellers will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third party seller.
5. CONSUMER RIGHTS
5.1 If you are contracting as a consumer, you may cancel a Contract at any time within seven working days, beginning on the day after you received the Products. In this case, you will receive a full refund of the price paid for the Products in accordance with our refunds policy (set out in clause 9 below).
5.2 To cancel a Contract, you must inform us in writing. You must also return the Products unless it is a detergent or chemical to us as soon as reasonably practicable after informing us of the cancellation, and at your own cost. You have a legal obligation to take reasonable care of the Products while they are in your possession. If you fail to comply with this obligation, we may have a right of action against you for compensation.
You will not have any right to cancel a Contract for the supply of any detergents or chemicals if the container seal has been broken or tampered with.
5.3 Details of your statutory right of cancellation, and an explanation of how to exercise it, are provided at www.cleaningequipmentscotland.com/returns/ This provision does not affect your other statutory rights as a consumer.
6. AVAILABILITY AND DELIVERY
We always aim to dispatch all Products in stock within 4 to 5 working days. The maximum UK delivery time for Products is 30 days from acceptance of your order unless specifically agreed with you.
7. RISK AND TITLE
7.1 The Products will be at your risk from the time of delivery.
7.2 Ownership of the Products will only pass to you when we receive full payment of all sums due in respect of the Products, including delivery charges.
8. PRICE AND PAYMENT
8.1 The price of the Products and our delivery charges will be as quoted on our site from time to time, except in cases of obvious error.
8.2 Product prices include VAT. Unless stated otherwise.
8.3 Product prices and delivery charges are liable to change at any time, but changes will not affect orders in respect of which we have already dispatched the Products.
8.4 Our site contains a large number of Products and it is always possible that, despite our best efforts, some of the Products listed on our site may be incorrectly priced. We will normally verify prices as part of our dispatch procedures so that, where a Product’s correct price is less than our stated price, we will charge the lower amount when dispatching the Product to you. If a Product’s correct price is higher than the price stated on our site, we will normally, at our discretion, either contact you for instructions before dispatching the Product, or reject your order and notify you of such rejection.
8.5 We are under no obligation to provide the Product to you at the incorrect (lower) price, even after we have dispatched the Product, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as an error.
8.6 Payment for all Products must be by PayPal, credit or debit card. We accept payment with Visa, Visa Electron, MasterCard, Maestro, Switch, Solo and Delta (We do not accept American Express, Diners Club or JCB). Your card may be charged before we dispatch your order.
9. OUR REFUNDS POLICY
9.1 If you return a Product to us:
(a) because you have cancelled the Contract between us within the fourteen-day cooling-off period (see clause 5.1 above), we will process the refund due to you as soon as possible and, in any case, within 30 days of the day you gave notice of cancellation. In this case, we will refund the price of the Product in full, and any applicable delivery charges. However, you will be responsible for the cost of returning the item to us.
(b) for any other reason (for instance, because you have notified us in accordance with clause 19 that you do not agree to a change in these terms and conditions or in any of our policies, or because you consider that the Product is defective), we will examine the returned Product and will notify you of any refund due via phone or e-mail within a reasonable period of time. We will usually process any refund due to you as soon as possible and, in any case, within 30 days of the day we confirmed to you via e-mail that you were entitled to a refund. If we opt to refund the price of a defective Product under clause 10.2, we will refund the price of the Product in full, any applicable delivery charges and any reasonable costs you incur in returning the item to us.
9.2 We will usually refund any money received from you using the same method originally used by you to pay for your purchase.
9.3 As there is a flat charge for delivery we will not refund delivery charges where you only return part of an order.
10.1 Subject to clauses 10.3 to 10.5 below, we warrant to you that any Product purchased from us through our site other than detergents and chemicals will, on delivery and for the following 12 months, conform in all material respects with its description, be of satisfactory quality, and be reasonably fit for all the purposes for which products of that kind are commonly supplied.
10.2 We will at our option repair, replace or refund the price of Products which you notify us are defective within the time limits set out in clauses 10.3 and 10.4.
10.3 You must notify any defect to us as soon as possible and in any event:
(a) Within 28 days of receipt of the relevant Product; or(b) if later, within 28 days of the date on which the defect becomes apparent.
Report defective products by emailing firstname.lastname@example.org or by calling our helpline on 01698 888877.
10.4 If you believe that any detergent or chemical is damaged on delivery, you must notify us within 7 days of delivery. Please email email@example.com or call our helpline on 01698 888877.
10.5 This warranty shall not apply to defects caused by misuse, neglect, accident, improper storage, installation or handling, frost damage, repair or alteration not carried out or authorised by us or the use of incorrect electrical supply voltage and extension cables, contaminated water supply or unsuitable chemicals.
11. OUR LIABILITY
11.1 Subject to clause 11.3, if we fail to comply with these terms and conditions, we shall only be liable to you for the purchase price of the Products and, subject to clause 11.2, any losses that you suffer as a result of our failure to comply (whether arising in contract, tort [including negligence], breach of statutory duty or otherwise) which are a foreseeable consequence of such failure.
11.2 Subject to clause 11.3, we will not be liable for losses that result from our failure to comply with these terms and conditions that fall into the following:
(a) loss of income or revenue;(b) loss of business;(c) loss of profits;(d) loss of anticipated savings;(e) loss of data; or(f) waste of management or office time.
However, this clause 11.2 will not prevent claims for loss of or damage to your tangible property that are foreseeable or any other claims for direct loss that are not excluded by categories (a) to (f) inclusive of this clause 11.2.
11.3 Nothing in this agreement excludes or limits our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any breach of the obligations implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987;or
(e) any other matter for which it would be illegal for us to exclude or attempt to exclude our liability.
11.4 Where you buy any Product from a third party seller to whose site we have provided a link, the seller’s individual liability will be set out in the seller’s terms and conditions.
12. WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
• All notices given by you to us must be given to LPC 35 Caledonian Road Larkhall Lanarkshire ML9 1EP or to firstname.lastname@example.org. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified in clause 12 above. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
14. TRANSFER OF RIGHTS AND OBLIGATIONS
14.1 The contract between you and us is binding on you and us and on our respective successors and assignees.
14.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.
14.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.
15. EVENTS OUTSIDE OUR CONTROL
15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).
15.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks; and(f) the acts, decrees, legislation, regulations or restrictions of any government.
15.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
16.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this will not constitute a waiver of such rights or remedies and will not relieve you from compliance with such obligations.
16.2 A waiver by us of any default will not constitute a waiver of any subsequent default.
16.3 No waiver by us of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 13 above.
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If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
18. ENTIRE AGREEMENT
18.1 These terms and conditions and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the subject matter of any Contract.
18.2 We each acknowledge that, in entering into a Contract, neither of us relies on any representation or warranty (whether made innocently or negligently) that is not set out in these terms and conditions or the documents referred to in them.
18.3 Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract.
18.4 Nothing in this clause limits or excludes any liability for fraud.
19. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
19.1 We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
19.2 You will be subject to the policies and terms and conditions in force at the time that you order products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we dispatch the Product (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within fourteen days of receipt by you of the Products).
20. LAW AND JURISDICTION
Contracts for the purchase of Products through our site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by English law. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) will be subject to the non-exclusive jurisdiction of the courts of Scotland.
Terms and Conditions of Sale
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 or extension cable, 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 Scottish Law and the parties shall submit to the sole jurisdiction of the Scottish Courts.
14. CUSTOMER SERVICES CONTACT DETAILS
Telephone 01698 889 709
Fax: 01698 889 710
Lothian Power Clean
35 Caledonian Road
Lanarkshire ML9 1EP