TotalLifter (AC, DF, CBG111)

All orders for the supply of goods (including any delivery of those goods) (“Goods”) entered into between W. Hall Limited (NI 12158) having its registered office at Cloughmore Road, Hydepark Industrial Estate, Newtownabbey, County Antrim BT36 4WW (“the Company”) and any person, firm or company (“the Buyer”) are subject to the terms and conditions set out below.

GENERAL

1.(a) These terms and conditions apply to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation order or similar document.
(b) All orders for Goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these Conditions.
(c) Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyers’ acceptance of these Conditions.
(d) At the Company’s discretion the Company may require before processing any order a deposit of such amount as shall be agreed with the Buyer. Where such a deposit is agreed and paid by the Buyer such deposit shall be non refundable and the parties shall be bound by the terms of these Conditions upon acceptance by the Company of the agreed deposit.
(e) No variations or additions to these terms shall have any effect unless such variations and/or additions have been agreed in writing by the Company and the Buyer.
(f) Cancellation by the Buyer of any order, or part thereof, may in the Company’s sole discretion be accepted by the Company but only before performance/delivery and on condition that the Buyer agrees to discharge, and discharges all costs and expenses incurred by the Company consequent on such cancellation.

PRICE

2. (a) The price of the Goods shall be the Company’s quoted price which shall be exclusive of VAT which shall be due at the rate prevailing on the date of the Company’s invoice.
(b) Each quotation given is for the quantities stipulated in the Buyer’s order only and shall not apply to any other quantity or to any other order or enquiry;
(c) In the event that the Company offers any discount whatsoever to the Buyer and such discount is conditional upon the discounted amount being paid in full within a specified period of time then in the event that the Buyer does not make payment of the discounted amount within the specified time period the Company reserves the right to withdraw the discount and the price payable by the Buyer shall be payable in accordance with condition 2a above and the Company shall seek payment in accordance with the payment terms set out herein.
(d) The cost of installation, demonstration and commissioning of machines shall also be deemed excluded from any prices quoted, unless otherwise previously agreed in writing;
(e) Unless otherwise agreed by the Company in writing the price for the Goods excludes cost of carriage, insurance, loading and unloading which the Buyer will pay in addition when it is due to pay for the Goods.

PAYMENT TERMS

3. (a) The Buyer shall pay the price of the Goods within 28 days of the date on which the Goods are invoiced (“the due date”). Time for payment shall be of the essence.
(b) If payment in full is not received by the Company from the Buyer on the due date the Company shall exercise its statutory rights to interest and compensation under the Late Payment of Commercial Debt (Interest) Act 1998. The Buyer will also re-imburse any bank fees and/or charges incurred by the Company in the operation of this account.
4. The Company reserves the right at any time to apply payments made in the following order:
(a) to any interest due by the Buyer on outstanding payments and any bank or legal charges incurred by the Company due to non-payment or late payment for the Goods by the Buyer; then
(b) against consumable items delivered to the Buyer; and finally
(c) to the Goods.

DELIVERY

5. Each delivery shall be considered to be a separate and independent transaction.
6. The Company shall deliver the Goods to the Buyer by such method of carriage as the Company shall choose including without limitation, collection of the Goods by the Buyer at the Company’s place of business and/or delivery of the Goods to a third party notified by the Buyer to the Company (“Third Party”). Delivery times or dates provided by the Company are estimates for planning purposes only and time shall not be of the essence.
7. (a) The Company shall not be liable for any direct, indirect or consequential loss, costs, damages, charges or expenses caused directly or indirectly by any delay in delivery or non-delivery or loss of the Goods (or any part thereof).
(b) In the event of the Buyer or the Third Party failing to accept delivery of the Goods on the date stipulated for delivery, the Company shall be at liberty to impose an additional charge for handling and storage of the Goods until such time as delivery is accepted.
(c) The Buyer shall indemnify the Company for any unusual or abnormal delivery costs incurred by the Company including (without prejudice to the generality of the foregoing) costs incurred due to delivery of the Goods having to be effected outside normal working hours or in part loads.
8. The Buyer will indemnify the Company against any liability (whether strict or otherwise) for any claim, loss or expense direct or indirect, on account of any injury, disease or death of persons (including the Buyer’s employees) or damage to property (including Buyer’s) arising out of the Buyer’s transportation, storage, handling, sale, use in any manufacturing process or disposal of the Goods.
9. Where the goods are collected by the Buyer, any collection vehicle, ship or other container provided by the Buyer or its agent must comply with all relevant legislation and regulations (including Health & Safety) and with any standards or practices normally observed by the Company. Notwithstanding that the Company may also inspect such containers and deliver into them, the Company shall in no circumstances be responsible for their suitability or condition nor liable for any damage or loss resulting from their use.

RETURNS

10. (a) Goods supplied by the Company to the Buyer or the Third Party pursuant to an order made by the Buyer shall not be returnable by the Buyer or the Third Party to the Company without the Company’s written consent;
(b) An application for consent to such return will be considered by the Company only if such application is received within 24 hours of delivery, such application to be in writing, to state the date and number of the invoice on foot of which such Goods were supplied and delivered together with a full written explanation of the reason for the return so requested;
(c) In the event of the Company’s consenting to such return, the Buyer’s account will be credited by the Company at invoice price less 15% handling charge, such charge (as Buyer hereby acknowledges) representing a genuine pre-estimate of the cost of the Company of accepting such return.

RISK

11. Risk of damage to or loss of Goods shall pass to the Buyer;
(a) in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Buyer that such Goods are available for collection; or
(b) in the case of Goods to be delivered other than at the Company’s premises, at the time of delivery of such Goods or if
the Buyer or the Third Party wrongly fails to take delivery of such Goods, at the time when the Company has tendered delivery of such Goods.

RESERVATION OF TITLE

12. (a) Notwithstanding delivery and passing of risk therein, or any other provision of these conditions, neither the legal nor beneficial property in Goods sold by the Company to the Buyer shall pass from the Company to the Buyer until payment in full (in cash or cleared funds) has been received by the Company.
(b) The Buyer shall hold the Goods as bailee for the Company but, notwithstanding the foregoing, and subject to these Conditions, shall be at the liberty to re-sell or to use the Goods in normal course of business. The proceeds of any such sale shall be held by the Buyer for the account of the Company and, to be applied first in payment of all sums due from the Buyer to the Company and, to that end, the Buyer irrevocably appoints the Company its Attorney for the purpose of perfecting the Company’s title to any such proceeds of sale.
(c) The Buyer shall not create any charge, mortgage, lein or encumbrance adverse to the Company’s title to the Goods; notwithstanding the foregoing, if the Buyer does so, all monies owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
(d) Pending the passing of property in the Goods to the Buyer, the Goods shall be kept by the Buyer or Third Party separate from those of either the Buyer or Third Party or of other third parties and shall be properly stored, handled, protected, transported, kept, in good condition, adequately insured and in such a manner as shall make them readily identifiable as the property of the Company.
(e) Until such time as property in the Goods passes to the Buyer, the Company shall be entitled at any time to require the Buyer or Third Party to deliver up the Goods to the Company, and if the Buyer or Third Party fails to do so, forthwith to enter upon any premises of the Buyer or Third Party or of any other third party where the Goods are stored or may be, and thereby to repossess the Goods.

WARRANTIES AND LIABILITIES

13. (a) Subject to the following provisions, the Company warrants that the Goods will at the time of delivery be free from defects in materials and workmanship.
(b) The above warranty is given by the Company subject to the following conditions;
(i) The Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
(ii) The Company shall be under no liability 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.
(iii) The Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date.
(iv) The above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
14. Subject as expressly provided in these terms and conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15. A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specifications shall (whether or not delivery is refused by the Buyer or Third Party) be notified to the Company within 7 days from the date of delivery or where the defect or failure was not apparent on reasonable inspection within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer or Third Party does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
16. Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet the specification is notified to the Company in accordance with these terms, the Company may replace the Goods (or the part in question) free of charge or at the Company’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the Price) in which case the Company shall have no further liability to the Buyer.
17. Except in respect of death or personal injury caused by the Company’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claim for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these terms. 19. The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control:
(a) Act of God, explosion, flood, tempest, fire or accident.
(b) War or threat of war, sabotage, insurrection, civil disturbance or requisition.
(c) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on any party of any governmental, parliamentary or local authority.
(d) Import or export regulations or embargoes.
(e) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party).
(f) Difficulties in obtaining raw materials, labour, fuel, parts or machinery.
(g) Power failure or breakdown in machinery.

DESCRIPTIVE MATERIAL AND ILLUSTRATIONS

19. All illustrations, drawings, catalogues, directories and descriptive material are of a generally informative nature only and do not form part of any specification or description of Goods except to the extent expressly incorporated therein in writing. For the avoidance of doubt, the Buyer hereby confirms that he did not in any way rely on any description when purchasing the Goods.

COMMUNICATIONS

20. All communications between the parties must be in writing and delivered by hand or sent by e-e-mail, pre-paid first class post or sent by facsimile transmission. It shall be deemed to have been received by the receiving party;
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery; and
(c) if sent by facsimile transmission on a working day prior to 4.00pm, at the time of transmission and otherwise on the next working day.

SEVERABILITY

21. In the event any one of the provisions contained in these Conditions shall for any reason be held to be invalid illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of these Conditions but shall be construed as if such invalid, illegal or unenforceable provision had never been set out herein, and the Conditions shall be carried out as nearly as possible according to its original terms and intent.

WAIVER

22. Failure or delay by the Company in enforcing or partially enforcing any provision of these Conditions will not be construed as a waiver of any of its rights hereunder. Any waiver by the Company of any breach of, or any default under, any provision hereof by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms these Conditions.

ASSIGNMENT

23 (a) The Buyer shall not be entitled to assign the benefit of these conditions or the order or any part of it without the prior written consent of the Company.
(b) The Company may assign its rights hereunder or any part of it to any person, firm or company.

RIGHTS OF THIRD PARTIES

24. The parties hereto do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

CONFIDENTIALLY

25. The Buyer undertakes that it will not at any time divulge or communicate to any person, except to its professional representatives or advisors or as may be required by law or any legal regulatory authority, any confidential information of the Company which may have or may in the future come to its knowledge and the Buyer shall use its best endeavours to prevent the publication or disclosure of any confidential information.

ENTIRE AGREEMENT

26. These Conditions constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations and discussions between the parties relating to it.

LAW

27. These terms and conditions will be construed in accordance with the laws of Northern Ireland. The parties submit to the jurisdiction of the courts of Northern Ireland.