Terms and Conditions of Business
1. Definitions
1.1. The ‘Buyer’ shall mean the corporate entity form or person seeking to purchase the Goods from the Company.
1.2. The ‘Company’ shall mean Euro Equipment Limited trading as Ditch Witch UK & Ireland.
1.3. The ‘Contract’ shall mean any contract for Goods or Services made between the Company and the Buyer.
1.4. The ‘Goods’ shall mean the products, articles or things sold by the Company.
1.5. The ‘Services’ shall mean any services provided by the Company to the Buyer, whether or not the Buyer shall purchase Goods.
1.6. The headings of the clauses shall not affect the construction of these conditions.
1.7. The use of the plural shall include the singular and the use of the singular shall include the plural.
1.8. References to the masculine, feminine or neutral genders shall include every gender.
2. The Contract
2.1. These conditions shall be incorporated into every Contract made between the Company and the Buyer and:
2.1.1. Shall apply to the exclusion of any terms and conditions put forward by or on behalf of the Buyer; and
2.1.2. Shall not create any agency or partnership between the Company and the Buyer or any third party.
2.2. No variation or waiver of or addition to these conditions, whether written or oral, shall have effect unless and until authorised in writing by a manager of the Company.
2.3. Quotations and estimates, whether written or oral, submitted by the Company shall be deemed to be an invitation to treat and not an offer.
2.4. For the purpose of The Contracts (Rights of Third Parties) Act 1999, these conditions do not create any right or remedy enforceable by any person other than the Buyer and the Company. This condition does not affect any right.
3. Time Limits
3.1. Any time or date quoted by the Company for delivery or collection of all or any of the Goods or the delivery of any Services is an estimate only, and the Company shall not be liable for any failure to meet any such estimate nor for any loss, whether financial or otherwise, resulting directly or indirectly therefrom. Time shall not be of the essence in relation to this condition or performance by the Company of its obligations under the Contract.
4. Collection and Delivery
4.1. The Buyer shall collect the Goods from the Company premises. Where it is agreed that the Company shall deliver or procure the delivery of the Goods, when ready, it shall do so at the risk and cost of the Buyer to such address as the Buyer may specify or, if no such address is specified, to the address of the Buyer to which correspondence and/or Goods may previously have been sent under the Contract. The manner of delivery shall be such as the Company, in its sole discretion, shall deem appropriate.
4.2. If the Company is unable to effect delivery on arrival at the Buyer’s premises for any reason whatsoever, an additional charge for any return or subsequent visit will be made.
5. Loss or Damage in Transit
5.1. The Buyer is under a duty, wherever possible, to examine the Goods on delivery or on collection, as the case may be.
5.2. Where the Goods cannot be examined, the carrier’s note or such other note, as the case may be, shall be marked by the Buyer at the time of delivery “not examined”.
5.3. The Company shall be under no liability whatsoever for any defects or shortages as aforesaid unless notified in writing of the details within seven days following despatch.
5.4. In all cases where defects or shortages are complained of, the Company shall be under no liability to the Buyer in respect thereof unless a reasonable opportunity to inspect the Goods is provided to the Company by giving at least 48 hours’ notice in writing before any use is made thereof or any alteration or modification is made thereto by the Buyer.
5.5. The Company shall make good any defects or shortages in accordance with the terms of this condition but otherwise shall be under no liability whatsoever, whensoever or howsoever arising, whether by way of negligence or otherwise, for such defects or shortages, save for death or personal injury caused by the Company’s negligence.
6. Cancellation by the Buyer
6.1. No cancellation of the whole or any part of any order, whether it is an order by instalment or otherwise, is permitted except where agreed in writing in advance by Directors of the Company.
6.2. Goods, once delivered, may not be returned unless authorisation has been given as specified in condition 6.1 and provided that the following conditions are satisfied:
6.2.1. Goods will only be accepted if they are in brand new and unused condition.
6.2.2. Packaged items will only be accepted if the package remains unbroken and in reasonable condition.
6.2.3. Goods will only be accepted if returned within two weeks of the date of collection or delivery.
6.2.4. All eligible returns will be subject to a 15% restocking fee.
7. Price
7.1. Any price quoted by the Company is based upon current price ruling as at the date appearing in the quotation, but the actual price to be charged to the Buyer under the Contract shall be based upon such ruling price, less any discount allowed by the Company, current as at the date of invoice and shall include the cost to the Company of any carriage, insurance and/or storage effected by it in connection with the Buyer’s order. In accordance with the terms of this condition, the Company shall be entitled at any time up to the date of the invoice to vary the price quoted to the Buyer.
7.2. Unless otherwise expressly stated in writing, all prices are exclusive of, and therefore subject to the addition of, VAT.
8. Date for Payment
8.1. Subject to any special terms agreed in writing between the Buyer and the Company, the Buyer shall pay 30% of the total price within two working days of acceptance of the order. The balance of the price shall be paid by the Buyer to the Seller in cleared funds prior to collection or delivery of the Goods.
8.2. All deposits paid by the Buyer are non-refundable.
8.3. The Buyer shall not be entitled to withhold payment of any amount payable to the Company by reason of any dispute or claim by the Buyer, whether or not the Goods or Services are to be provided by instalments and, in such case, each instalment is deemed to constitute a separate and distinct Contract. In the case of any short delivery or delivery of damaged Goods to the Buyer, the Buyer shall remain liable to pay the full invoiced price of all other Goods delivered.
9. Risk
Risk in the Goods shall pass to the Buyer when the Goods are dispatched by the Company or collected by the Buyer or its agent.
10. Title
Notwithstanding the passing of risk under condition 9, unless and until payment shall have been made to the Company of all sums due to it under the Contract and/or under any other Contract between the Buyer and the Company on any account whatsoever, property in and beneficial title to the Goods shall remain in the Company.
11. Termination and Suspension
Without prejudice to any rights and remedies available to it, whether under the Contract or otherwise, the Company shall be entitled, in its absolute discretion and upon giving to the Buyer written notice of its intention to do so, either to terminate wholly or in part the Contract and/or any other contract with the Buyer or to withhold, vary or suspend performance of all or any of its obligations under the Contract or any other Contract in any one or more of the following events:
11.1. If any sum owing to the Company from the Buyer on any account whatsoever shall be unpaid after the date for payment.
11.2. If the Buyer shall refuse to take delivery or collect any of the Goods in accordance with the terms of the Contract.
11.3. If an insolvency event occurs.
11.4. If the Buyer shall commit any breach of any Contract with the Company.
11.5. If the Company shall have doubts as to the solvency of the Buyer.
12. Warranty and Liability
The liability of the Company is subject to compliance by the Buyer with all the terms contained in this clause 12.
12.1. The Company shall make good by reimbursement of the whole or part of the price, and where relevant as a deduction from any part of the price remaining unpaid, or at its option by repair or by replacement, any defect developing under normal use in the Goods and due solely to faulty design, except where the design is supplied by or on behalf of the Buyer, faulty materials or faulty workmanship, provided that:
12.1.1. The Buyer shall be responsible for ensuring that Goods are fit for the purpose for which it wishes to use them and the Company gives no warranty, and none shall be implied, that the Goods are fit for any particular purpose; and
12.1.2. The defect in question shall have appeared within 12 months, or such longer time period, if any, as may be provided for in any guarantee given by or on behalf of the manufacturer of the Goods, after the Buyer shall have taken possession of the Goods or performance of Services has been completed and shall have been thereupon promptly notified in writing to the Company; and
12.1.3. Any Goods alleged to be defective shall be stored in a safe place by the Buyer until such time as the Company authorises their disposal in writing; and
12.1.4. Any Goods alleged to be defective shall, if so required by the Company, be promptly returned at the Buyer’s risk and expense to the Company’s works for inspection and the Company shall, in its reasonable opinion, consider them to be defective solely by reason of faulty design, materials or workmanship; and
12.1.5. No attempt shall have been made by the Buyer or by any third party to remedy any defect before, if so required by the Company, the Goods in question shall have been returned to the Company for inspection; and
12.1.6. The Goods in question shall have been serviced and maintained properly and in accordance with the Company’s recommendations and shall not have been fitted with any parts, components or accessories other than those manufactured or recommended by the Company.
12.2. Apart from such reimbursement, repair or replacement, the Company, its employees and agents shall be under no liability to the Buyer or to any third party for any injury, loss or damage of any kind whatsoever, howsoever and wheresoever arising or arisen, and whether direct or indirect, including without limitation any injury, loss or damage arising out of or incidental to:
12.2.1. Any negligence of the Company or any of its employees or agents, except insofar as such negligence may result in death or personal injury; or
12.2.2. The Company’s performance of or failure to perform or breach any of its obligations, whether express or implied under the Contract or otherwise; or
12.2.3. The supply, installation, repair or maintenance of any Goods; or
12.2.4. Any defect in any Goods; or
12.2.5. Any advice given or representation made by the Company or on its behalf; or
12.2.6. Any performance of Services.
12.3. The Company shall in no circumstances be liable to the Buyer for any economic loss, loss of profit, loss of business or like loss.
12.4. The provisions of this clause 12 shall survive any termination of the Contract.
12.5. The exclusions from and limitations of liability set out in this clause 12 shall be considered severable. The invalidity or unenforceability of any one clause, sub-clause or paragraph of this clause 12 shall not affect the validity or enforceability of any other part of clause 12.
13. Indemnity
13.1. If any process is to be applied to the Goods or the Services by the Company in accordance with a specification or direction, as the case may be, submitted by the Buyer, the Buyer shall indemnify and hold harmless the Company from and against all loss, damages, costs and expenses awarded or incurred by the Company in connection with or paid by the Company in settlement of any claim for infringement or alleged infringement of any intellectual property rights of any other person which results from the Company’s use of the Buyer’s specification or from the Company complying with the Buyer’s direction, as the case may be.
14. Force Majeure
The Company shall have no liability whatsoever for any failure to perform, or for any delay in the performance of, any of its obligations under the Contract arising wholly or in part by reason of any factor beyond its direct control.
15. Notices
Any notice required to be given should be in writing under the Contract and shall be given either by email or posted to the registered office of the party for which it is intended.
16. Governing Law
The Contract shall be governed by the law of England & Wales and subject to the exclusive jurisdiction of the English Courts.