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9. LIABILITIES
9.1 In this Clause "the Defect" shall mean the condition and/or any attribute of the
Goods and/or any condition or circumstance arising from Our installation of the
Goods or any other service provided by Us and/or any other circumstances which
but for the effect of these Terms would have entitled You to damages.
9.2 Nothing in these Terms shall exclude or restrict Our liability for death or personal
injury resulting from Our negligence or Our liability for fraudulent
misrepresentation.
9.3 If You deal as a Consumer any provision of these Terms which is of no effect shall
not apply. The statutory rights of a Consumer are not affected by these Terms.
9.4 Subject to Clauses 9.2 & 9.3 of these Terms We shall not be liable by reason of
any misrepresentation (unless fraudulent) or in contract tort (including negligence
or breach of statutory duty) or otherwise howsoever and whatever the cause for
any damages whatsoever. Instead of liability in damages We undertake liability
under Clause 9.5 below.
9.5 Where but for the effect of Clause 9.4 of these Terms You would have been
entitled to damages against Us We shall not be liable to pay damages but subject
to the conditions set out in Clause 9.6 below shall at Our sole discretion either
repair the Goods at Our own expense or supply replacement Goods or re-install
the Goods free of charge or refund all (or where appropriate part) of the price
paid.
9.6 We will not be liable under Clause 9.5:
(a) if the Defect would have been apparent on a reasonable inspection under
Clause 6.1 of these Terms at the time of unloading unless You give Us written
notice within 5 working days of the time of unloading.
(b) unless the Defect is discovered within 12 months from the date of delivery and
we are given written notice of the Defect within 10 working days of it being
discovered.
(c) unless after discovery of the Defect We are given a reasonable opportunity to
inspect the Goods before they are used or in any way interfered with. We
acknowledge that the costs of suspending works are relevant to the
determination of what is a reasonable opportunity and this sub clause shall not
apply to any works affecting the Goods which it may be reasonably necessary to
carry out in the interest of safety and/or as emergency measures.
(d) if the Defect arises from fair wear and tear
(e) if the Defect arises from Your negligence misuse alteration or repair of the
Goods storage of the Goods other than at room temperature or in any other
unsuitable conditions or abnormal working conditions; and/or
(f) if the Defect is caused by Your or any third party's failure to assemble the
Goods in accordance with Our prescribed methods and our technical information
brochures.
9.7 If the Goods or a component in the Goods ("the Component") are not
manufactured by Us or have been processed by a third party whether at Our or
Your request Our liability in respect of any defect in workmanship or materials of
the Goods or the Component will be limited to such rights against the
manufacturer or the third party as We may have in respect of those Goods or that
Component.
9.8 If the Goods are supplied manufactured or processed to the drawing design
measurement or specification provided by You then:-
9.8.1 Subject to Clauses 9.2 & 9.3 of these Terms We shall not be under any liability
for damages whatsoever or under Clause 9.5 of these Terms as the case may be
except in the event of:
(a) fraudulent misrepresentation by Us
(b) misrepresentation where the representation was made or confirmed in writing
by a Company Signatory
(c) non-compliance with such drawing design measurement or specification; or
(d) breach of a written warranty signed by a Company Signatory that the Goods
are fit for that purpose
9.8.2 You will unconditionally fully and effectively indemnify Us against all losses
damages costs on an indemnity basis and expenses awarded against or incurred
by Us in connection with or paid or agreed to be paid by Us in settlement of any
claim:-
(a) for infringement of any patents copyright design trademark or any other industrial
or intellectual property rights of any other person; and/or
(b) arising from any such manufacturing or processing including but not limited to
any Defect in the Goods. This indemnity will be reduced in proportion to the
extent that such losses damage costs and expenses are due to Our negligence.
9.9 Subject to Clauses 9.2 & 9.3 We shall not be liable for misrepresentation (unless
fraudulent) or in contract tort (including negligence or breach of statutory duty) or
otherwise howsoever and whatever the cause thereof for:-
(a) any loss of profit, business, contracts, revenues or anticipated savings; and/or
(b) any special, indirect or consequential damage of any nature whatsoever.
9.10 Except where You deal as a Consumer You will unconditionally fully and
effectively indemnify Us against all losses damages penalties costs on an
indemnity basis and expenses awarded against or incurred by Us in connection
with or paid or agreed to be paid by Us in settlement of any claim by any third
party arising from the supply or use of the Goods. This indemnity will be reduced
in proportion to the extent that such losses damages penalties costs and
expenses are due to Our negligence.
9.11 Without prejudice to any other provisions of these Terms in any event Our total
liability for any one claim or for the total of all claims arising from any one act of
default on Our part (whether arising from Our negligence or otherwise) shall not
exceed (the purchase price of the Goods the subject matter of any claim) (or the
limit of liability laid down by Our insurers in respect of such claim).
10. DEFAULT & TERMINATION
10.1 "Insolvent" means You ceasing to pay Your debts in the ordinary course of
business or being unable to pay Your debts as they become due or You ceasing
or threatening to cease to carry on Your business.
10.2 "Associated Company" means Your subsidiary or holding company as defined
in Section 736 and Section 736A of the Companies Act 1985 or a subsidiary of
such holding company, or any company over which Your directors or
shareholders have control as defined in Section 840 or the Income and
Corporation Taxes Act 1988.
10.3 If You fail to pay any invoice or any sum due to Us under any contract on the
due date or Your credit limit is exceeded or You or Your Associated Company
becomes Insolvent or there is a material change in Your or Your Associated
Company's constitution or You commit a material breach of this contract and fail
to remedy that breach after being requested to do so all sums outstanding
between You and Us under this and any other contract shall become immediately
due and payable and We shall be entitled to do any one or more of the following
(without prejudice to any other right or remedy We may have):-
(a) require payment in cleared funds in advance of further deliveries of Goods
(b) charge interest on the monies outstanding at the rate of 8 per cent above the
Bank of England official dealing rate in force from time to time from the due date
until date of payment after as well as before judgement
(c) suspend or cancel any further deliveries of Goods to You under any contract
without liability on Our part
(d) suspend or cancel any obligation to install Goods whether under this or any
other contract
(e) without prejudice to the generality of Clause 7 of these Terms exercise any of
Our rights pursuant to that Clause; and/or
(f) terminate this or any other contract with You or any Associated Company
without liability on Our part.
10.4 Except where You deal as a Consumer You shall reimburse Us costs including
legal costs on an indemnity basis which We incur in enforcing Our rights under
this contract including but not limited to recovery of any sums due.
11. EXPORT TERMS
11.1 Where the Goods are supplied for export from the United Kingdom the
provisions of this Clause 11 shall apply notwithstanding any provision of these
Terms.
11.2 In any case where Goods are sold CIF or FOB or on the basis of any other
international trade term the meaning of such terms contained in Incoterms (1990)
shall apply but if there is any conflict between the provisions of Incoterms and
these Terms the latter shall prevail.
11.3 In the case of any sale of goods FOB We shall be under no obligation to give
You notice specified in section 32(3) of the Sale of Goods Act 1979.
11.4 You shall be responsible for arranging for inspection of the Goods at Our
premises before shipment. We shall have no liability for any claim in respect of
any defect in the Goods which would have been apparent on inspection and
which is made after shipment or in respect of any damage under transit.
11.5.1 Payment of all amounts due to Us shall be made by irrevocable letter of credit
opened by You in favour of Us and confirmed by a United Kingdom clearing bank
acceptable to Us or any other method of payment agreed by Us in writing by a
Company Signatory.
11.5.2 Your order will not be accepted by Us until We have evidence of the letter of
credit or bill of exchange as the case may be. All costs and charges incurred by
us in negotiating and accepting payment methods shall be added to the price of
the Goods.
11.5.3 This payment clause shall also apply if You are resident outside the United
Kingdom.
12. GENERAL
12.1 This contract shall be governed and interpreted according to the Law of England
and Wales and You agree to submit to the non-exclusive jurisdiction of the
English Courts.
12.2 Any reference in these Terms to any Statute or Statutory Provision includes a
reference to that Statute or Statutory Provision as from time to time amended
extended or re-enacted.
12.3 The headings in these Terms are for convenience only and shall not affect their
interpretation.
12.4 We shall not be liable for any loss or damage arising as a direct or indirect result
of Our delay or failure to perform Our obligations under this contract by reason of
any force majeure circumstances which shall include but not be limited to
industrial action, import or export regulations or embargoes, difficulties in
obtaining materials, parts components labour or fuel, power failure or breakdown
in machinery or vehicles or other circumstance outside Our control.
12.5 The waiver by Us of any breach or default of these Terms shall not be construed
as a continued waiver of that breach nor as a waiver of any subsequent breach
of the same or any other provision.
12.6 If any clause or sub-clause of the Terms is held by a competent authority to be
invalid or unenforceable the validity of the other clauses and sub-clauses of these
Terms shall not be affected and they shall remain in full force and effect.
12.7 If the Housing Grants Construction & Regeneration Act 1996 Part II applies to
this contract the Scheme under that Act shall apply and take precedence in the
event of conflict between the Scheme and these Terms.
12.8 This contract is personal to You and it may not be assigned.
12.9 Termination of this contract shall not affect rights and obligations which have
already accrued at the time of termination.
Please retain for your records Registered Office: Hillsborough Works, Langsett Road, Sheffield S6 2LW
UK Registered 1111722
Part of plc
www.komfort.com 1228.
Velocity price list 22/2/06 2:08 pm Page 19
