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10.
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Warranty of Quality of Goods
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10.1
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If the Customer establishes to the Company's reasonable satisfaction that there is a defect in the materials or workmanship of the Goods manufactured or there is some other failure by the Company in relation to the conformity of the Goods with the Contract then the Company shall at its option, at its sole discretion and within a reasonable time;
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10.1.1
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repair or make good such defect or failure in such Goods free of charge to the Customer (including all costs of transportation of any Goods or materials to and from the Customer for that purpose);
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10.1.2
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replace such Goods with Goods which are in all respects in accordance with the Contract; or
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10.1.3
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issue a credit note to the Customer in respect of the whole or part of the Contract price of such Goods as appropriate having taken back such Goods or materials relating to such Goods
subject, in every case, to the remaining provisions of this Condition 9 provided that the liability of the Company under this Condition 9 shall in no event exceed the purchase price of such Goods and performance of any one of the above options shall constitute an entire discharge of the Company's liability under this warranty.
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10.2
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Condition 10.1 shall not apply unless the Customer:
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10.2.1
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notifies the Company in writing of the alleged defect within 3 days of the time when the Customer discovers or ought to have discovered the defect and in any event within 12 months of the delivery of the Goods to the Customer or such other periods as agreed by the Company in writing; and
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10.2.2
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affords the Company a reasonable opportunity to inspect the relevant Goods, if so requested by the Company and where it is reasonable to do so, promptly returns to the Company or such other person nominated by the Company a sample of the Goods or within 14 days, carriage paid by the Customer, for inspection, examination and testing and/or otherwise permit the Company to have access to the Goods.
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10.3
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If the Company elects to replace the Goods pursuant to Condition 10.1, the Company shall deliver the replacement Goods to the Customer at the Company's own expense at the address to which the defective Goods were delivered and the legal, equitable and beneficial title to the defective Goods which are being replaced shall (if it has vested in the Customer) re vest in the Company and the Customer shall make any arrangements as may be necessary to deliver up to the Company the defective Goods which are being replaced.
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10.4
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The Company shall be under no liability under the warranty at Condition 10.1 above:
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10.4.1
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in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company's approval;
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10.4.2
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if the total price for the Goods has not been paid by the due date for payment;
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10.4.3
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for any Goods manufactured or appropriated to the Contract in accordance with any design, specification, instruction or recommendation made to the Company by the Customer;
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10.4.4
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in respect of any type of defect, damage or wear specifically excluded by the Company by notice in writing; or
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10.4.5
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if the Customer makes any further use of the Goods after giving notice in accordance with Clause 10.2.
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10.5
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The warranties set out in this document are the only warranties which shall be given by the Company and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
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11.
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Exclusion and Limitation of Liability
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11.1
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Condition 5 and the following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
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11.1.1
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any breach of these Conditions or the Contract; and
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11.1.2
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any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
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11.2
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Nothing in these Condition excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence, or for fraudulent misrepresentation.
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11.3
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The Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the upper limit of the Company's insurance or] [of the price of the Goods and/or Services whichever is the greater in respect of which the Customer suffered or incurred such loss or damage; and
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11.4
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The Company shall not be liable to the Customer for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with the Contract, or for any liability incurred by the Customer to any other person for any economic loss, claim for damages or awards howsoever arising from the Goods, or otherwise.
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11.5
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The price of the Goods has been calculated on the basis that the Company will exclude or limit its liability as set out in the Contract and the Customer by placing an order agrees and warrants that the Customer shall insure against or bear itself any loss for which the Company has excluded or limited its liability in the Contract and the Company shall have no further liability to the Customer.
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12.
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Subcontracting, Assignment and Third Party Rights
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12.1
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The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Company.
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12.2
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The Company may assign, charge, subcontract or transfer the Contract or any part of it to any person.
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12.3
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A person who is not a party to the Contract (including without limitation any employee, officer, agent, representative or sub contractor of either party) shall not have any right to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Company and the Customer.
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12.4
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Without prejudice to the intention of the parties to give no rights to the third parties under the Contract, any term of the Contract can be varied and the Contract can be cancelled or terminated without the consent of any third party who might benefit from its terms or have enforceable rights under the Contract.
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13.
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Force Majeure
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The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business and its obligations under the Contract due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event of force majeure continues for a continuous period in excess of 3 months, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
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