In these standard terms and conditions the following words have the following meanings.
'WTL' means Weeding Technologies Limited.
'you' means the person listed as the purchaser of the Goods on the order form accompanying these terms and conditions.
'Contract' means any contract for the sale of Goods by WTL to you.
'Deposit' means the deposit specified in clause 5.1.
'Goods' means any goods detailed on the order form accompanying these terms and conditions.
'Price' means the price of the Goods as detailed on the order form accompanying these terms and conditions.
2 Quotations by WTL unless otherwise stated in them shall be open for acceptance within 30 days of the date of the quotation.
Fundamentals of contract
3.1 No Contract shall come into existence until your order (however given) is accepted by the earliest of:
— WTL's written acceptance;
— delivery of the Goods; and
— WTL's invoice.
3.2 These conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by you.
3.3 No variation or amendment of this agreement or oral promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of each party.
3.4 You promise (as an essential term of this Contract) and separately represent that you deal with WTL as a business, and not as a consumer, and that you are not protected by any consumer protection legislation or small business protection legislation not specifically notified by you in writing to WTL prior to this Contract coming into existence, and you acknowledge that WTL has relied on said representation in entering into this Contract and in supplying any Goods to you.
4.1 The Price for the Goods is ex-works and excludes packing, insurance and carriage, VAT andother taxes or duties. The Price invoiced is calculated in respect of the quantity of Goods actually delivered irrespective of the quantity in respect of which any quotation was issued.
4.2 WTL shall have the right in respect of any uncompleted portion of the Contract to adjust its prices for any increase in the price of materials, parts, labour or transport, changes in work, delivery schedules or quantities or any other costs of any kind arising for any reason after the date of the Contract.
4.3 Price changes shall take effect on the date of service on you of notice of the change.
5.1 You shall pay to WTL 30% of the Price within 7 days of WTL’s written acceptance of your order (and in any event prior to delivery of the goods) as a deposit, without discount, deduction or set-off of any kind, in pounds sterling, and in no circumstances shall you be entitled to make any deduction or withhold payment for any reason at all or set off any sums against the amount of the deposit payable.
5.2 Subject to clause 5.1 above, all invoices are payable, without discount of any kind, in pounds sterling within 7 calendar days before delivery of the goods and in no circumstances shall you be entitled to make any deduction or
withhold payment for any reason at all or set off any sums against the amount of payment.
6.1 Notwithstanding the earlier passing of risk, title in the Goods shall remain with WTL and shall not pass to you until the amount due under the invoice for them (including interest and costs) has been paid in full. Furthermore, and without limiting the effect of the first sentence of this subclause 6.1, title in the Goods shall not pass to you until you have fully inspected the Goods and signed to accept delivery of them.
6.2 Until title passes you shall hold the Goods as bailee for WTL and shall store or mark them so that they can at all times be identified as the property of WTL.
6.3 WTL may at any time before title passes and without any liability to you: -repossess and dismantle and use or sell all or any of the Goods and by doing so terminate your right to use, sell or otherwise deal in them; and -for that purpose (or for the purpose of determining what if any Goods are held by you and inspecting them) enter any premises of or occupied by you.
6.4 Until title passes the entire proceeds of sale of the Goods shall be held in trust for WTL and shall be held in a separate designated account and not mingled with other moneys or paid into any overdrawn bank account and shall be at all times identifiable as WTL's money.
6.5 WTL may maintain an action for the price of any Goods notwithstanding that title in them has not passed to you.
Risk, delivery and performance
7.1 The Goods are deemed to be delivered to you when WTL makes them available to you or any
agent of yours or any carrier (who shall be your agent regardless of who pays its charges) at WTL's
premises or any other delivery point agreed by WTL.
7.2 Risk in the Goods passes when they are delivered in accordance with clause 7.1.
7.3 WTL may at its discretion deliver the Goods by instalments in any sequence.
7.4 Where the Goods are delivered by instalments, no default or failure by WTL in respect of any one or more instalment(s) shall vitiate the Contract in respect of the Goods previously delivered or in respect of later instalments or entitle you to withhold any payment due under this Contract.
7.5 WTL may deliver to you and you shall accept in satisfaction of the Contract a lesser quantity than the quantity of Goods ordered. If and to the extent that WTL intends to rely upon this clause it shall confirm the same in writing no later than 28 days after being notified by you of the shortfall in any order. If WTL gives such notice any amounts previously paid by you shall be repaid by WTL within 14 days of the date of such notice to the extent that they relate to Goods in respect of which WTL has notified you that WTL does not intend to deliver them, provided that WTL has not in fact delivered such Goods to you.
7.6 Any dates quoted by WTL for the delivery of the Goods are approximate only and shall not form part of the Contract and you acknowledge that in the performance expected of WTL no regard has been paid to any quoted delivery dates.
7.7 If you fail:
— to take delivery of the Goods or any part of them on the due date; and
— to provide any instructions or documents required to enable the Goods to be delivered on the due date,
WTL may on giving written notice to you store or arrange for the storage of the Goods, and on the service of the notice:
— risk in the Goods shall pass to you;
— delivery of the Goods shall be deemed to have taken place; and
— you shall pay to WTL all costs and expenses including storage and any redelivery and insurance charges arising from its failure.
7.8 Save for the remedies expressly provided for in these terms and conditions, WTL shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle you to refuse to accept any delivery or performance of or repudiate the Contract. Notwithstanding the first sentence of this subclause 7.8, nothing in this Contract shall exclude liability in respect of personal injury or death caused (in each case) by the negligence of WTL or of its employees, nor shall anything in this Contract exclude liability for fraud.
8.1 You shall be responsible for carrying out a full inspection of the Goods at the point of delivery.
8.2 Any claim that any Goods have been delivered damaged, are otherwise defective, are not of the correct quantity or do not comply with their description shall be notified by you to WTL within seven working days of their delivery or in the case of any defect which is not reasonably apparent on inspection then within seven working days of the defect coming to your attention (or of the date when the defect reasonably should have been apparent, if earlier).
8.3 Any claim within the scope of the preceding subclauses of this clause 8 must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Goods for which part numbers are available.
8.4 WTL shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and you shall, if so requested in writing by WTL, at your risk promptly return any Goods the subject of any claim and any packing materials securely packed and carriage paid to WTL for examination. In the event that any Goods being returned to WTL are lost or damaged in transit such Goods shall be deemed not to have been defective at the point of delivery to you and you shall have no claim against WTL in respect of any such Goods. Any parts removed from the Goods will become WTL’s property if WTL deems such parts defective or that for whatever reason they are not suitable to be replaced in the Goods. If your claim is valid then the cost of transporting the part initially incurred by you will be reimbursed by WTL. Costs of labour and travel are a matter between you and WTL’s authorised dealer unless the Goods were sold to you direct in a territory with no authorised dealer.
8.5 WTL shall have no liability with regard to any claim in respect of which you have not complied with the claims procedures in these conditions.
Scope of contract
9 Under no circumstances shall WTL have any liability of whatever kind for any of the following:
9.1 any defects or other losses resulting from wear and tear, accident, improper use by you or use by you except in accordance with the instructions or advice of WTL or its authorised dealer or the manufacturer of any Goods or neglect or from any instructions or materials provided by you; please note that (without limiting the effect of the previous words of this subclause) use of unauthorised foam additive or alteration in the factory dosage settings in relation to foam additive or use of the goods without foam would constitute “use by you except in accordance with the instructions or advice of WTL or its authorised dealer” for the purposes of this subclause; for the purposes of this subclause 9.1, anything done by any person (other than WTL and its officers and employees acting in the course of their duties to WTL) who is permitted access to the Goods by you, or who acquires access to the Goods (without the permission of WTL) after they have been delivered to you, or who acts by your permission or on your instructions, shall be treated as done by you;
9.2 any Goods which have been adjusted, modified or repaired except by WTL; (without limiting the effect of the prior words of this subclause) any Goods incorporating replacement components not obtained from WTL or its authorised dealer; any Goods which have at any time since delivery to you been used by any person not correctly trained and approved to use the Goods in accordance with the procedures specified by WTL or by any person who, despite said training and approval, is shown not to have been, at any time when using the Goods, familiar with any manual for the Goods that has been supplied to you and competent in the procedures set out in it; please note that it is not to be inferred or implied from the fact that WTL may supply you with any technical means of altering the settings for the use of the Goods that you have any contractual or other legal protection in the event that you do so - any alterations to the settings for the use of the Goods if not made in accordance with WTL's or the manufacturer's express written instructions are made at your own risk.
9.3 the suitability of any Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to WTL (this subclause 9.3 is not intended to affect the remedies expressly provided for by these terms and conditions in cases where the Goods are defective such as to render them unsuitable for use in connection with the non-herbicidal management of weeds);
9.4 any substitution by you or anyone acting on your behalf or with your permission or at your request (even if that person is WTL) of any materials or components not forming part of any specification of the Goods agreed in writing by WTL;
9.5 any descriptions, illustrations, specifications, figures as to performance, drawings and particulars of weights and dimensions submitted by WTL or contained in WTL's catalogues, price lists or elsewhere since they are merely intended to represent a general idea of the Goods and not to form part of the Contract nor to be treated as representations;
9.6 (without affecting the scope of subclause 9.5 immediately above) any technical information, recommendations, statements or advice furnished by WTL, its servants or agents not given in writing in response to a specific written request from you before the Contract is made; or
9.7 any variations in the quantities or dimensions of any Goods or changes of their specifications or substitution of any materials or components, if the variation or substitution does not materially affect the characteristics of the Goods, and the substituted materials or components are of a quality equal or superior to those originally specified.
Extent of liability
10.1 WTL shall have no liability to you for any loss (including loss of profit or other economic loss (direct or indirect) or indirect or consequential loss) or damage of any nature (howsoever caused) or loss or damage (contractual, tortious, for breach of statutory duty or otherwise) arising from any breach of any express or implied warranty or condition of the Contract or any negligence or breach of statutory or other duty on the part of WTL or in any other way arising out of or in connection with the performance or purported performance of or failure to perform the
-for death or personal injury resulting from WTL's own negligence or that of WTL’s
officers or employees acting on its behalf in the course of their duties to it;
-for fraudulent misrepresentation; and
-as expressly stated in these conditions.
10.2 If you accurately notify in writing to WTL within the period allowed by clause (8.2) of these terms and conditions that such Goods have been delivered damaged or in an otherwise defective condition or do not comply with their description, then, insofar as (through no fault of yours or of anyone acting on your behalf) said written notice is accurate in that such goods shall in fact have been delivered damaged or in an otherwise defective condition or shall not have complied at the point of delivery with their description, WTL shall give effect to a remedy selected by WTL in its sole and unfettered discretion from such of the following as are capable of sensible application:-
(1) replacing with similar goods any Goods which are damaged or do not comply with their description or are defective,
(2) allowing you credit for the invoice value of any such Goods,
(3) repairing any damaged Goods or,
(4) to the extent that the Goods are not of WTL's manufacture and that the defect relates to their manufacture, assigning to you (so far as WTL is able to do so) any warranties given by the manufacturer of the Goods to WTL.
WTL upon exercising any of the options set out in this subclause 10.2 shall be relieved of any further liability in respect of the Goods in question.
10.3 The delivery of any repaired or replacement Goods shall be at WTL's premises or at the delivery point specified for the original Goods.
10.4 Where WTL is liable in accordance with this condition in respect of only some or part of the Goods the Contract shall remain in full force and effect in respect of the other Goods or other parts of the Goods and no set-off, deduction or other claim shall be made by you in respect of such other Goods or other parts of the Goods.
10.5 No claim against WTL shall be entertained for any defect arising from any design or specification provided or made by you or if any adjustments, alterations or other work has been done to the Goods by any person except WTL.
10.6 WTL shall not be liable where any Goods are lost or damaged in transit and all claims by you shall be made against the carrier. Replacements for such lost or damaged Goods will, if available, be supplied by WTL at the prices applying at the date of despatch, subject to WTL’s sole unfettered discretion.
10.7 For the avoidance of doubt, in no circumstances shall you be entitled to a remedy amounting to or equivalent to double recovery in respect of the same loss, and in no circumstances
shall WTL be obliged to put you in a better position than if the Goods had been delivered in good
order at the first opportunity.
10.8 In no circumstances shall the liability of WTL to you arising in respect of or in connection with any Goods exceed the invoice value of said Goods.
11.1 WTL may sub-contract the performance of the Contract in whole or in part.
11.2 You shall not assign the Contract in whole or in part.
11.3 Without limiting any rights WTL would have in the absence of this clause, WTL may at its discretion suspend or terminate the supply of any Goods if you fail to make any payment when and as due or otherwise default on any of your obligations under the Contract or any other agreement with WTL or become insolvent (whether on a balance-sheet basis, or in the sense of not being able to pay your debts as they fall due, or otherwise), have an administrative receiver of your business appointed or are compulsorily or voluntarily wound up or put into administration or cease or threaten to cease trading or enter into a voluntary arrangement or other composition or arrangement with your creditors or have a bankruptcy petition presented against you or a Debt Relief Order made in respect of you or if you present a petition for your own bankruptcy or if any equivalent step is taken (to any of those listed in this subclause 11.3) in any jurisdiction or if WTL in good faith believes that any of those events may occur, and in case of termination WTL may forfeit any Deposit paid.
11.4 If the Goods are manufactured in accordance with any design or specification provided or made by you then you shall compensate WTL in full on demand for all claims, expenses and liabilities of any nature in connection with them, including (but not limited to) any claim, whether actual or alleged, that the design or specification infringes the rights of any third party.
11.5 All tools, patterns, materials, drawings, specifications and other data provided by WTL shall remain its property and all knowledge and other technical information, patentable or unpatentable, copyright and registered designs and all other intellectual property rights arising from the execution of any orders shall be and become the property of WTL.
12 You shall not at any time whether before or after the termination of the Contract divulge or use any unpublished technical information deriving from WTL or any other confidential information in relation to WTL's affairs or business or method of carrying on business. You shall not reverse- engineer the Goods or subject them to laboratory analysis and you shall not make use of any information derived from reverse-engineering the Goods or from laboratory analysis of them (save as authorised in writing by WTL).
13 Orders for Goods which have to be made especially for you will be charged in full unless written notice of cancellation is received not later than 8 weeks before the expected delivery date quoted in WTL's order acknowledgment and manufacture of them or any components for them has not commenced at the date of that notice. Orders for stock items may be cancelled by written notice at any time before the Goods are allocated to the Contract but if a cancellation notice is received after the Goods have been allocated to the Contract then a packing and handling charge will be payable by you.
14 WTL shall not be liable for any failure in the performance of any of its obligations under the Contract caused by factors outside its control. If such circumstances continue for a continuous period of more than six months, either party may terminate this agreement by written notice to the other party.
Law and jurisdiction
15 This Contract and all matters arising out of or in connection with it or its subject-matter or formation (whether or not themselves of a contractual nature) shall be governed by English law and you consent to the exclusive jurisdiction of the English courts in all matters regarding it except to the extent that WTL invokes the jurisdiction of the courts of any other country. Nothing in this Agreement shall prevent WTL from commencing proceedings in any jurisdiction.
16.1 Any notice given under this Contract shall be in writing and may be served:
— by registered or recorded delivery mail;
— by e-mail; or
— by any other means which any party specifies by notice to the others as a means by which it is willing to accept service.
However service by SMS, MMS, text message or instant messaging service shall not be sufficient.
16.2 WTL’s address and contact details for the service of notices are as follows unless and until WTL notifies you to the contrary:- Unit 2 Westpoint Trading Estate, Alliance Road, London, W3 0RA
16.3 A notice is deemed to have been served:
— if it was served in person, at the time of service;
— if it was served by post within Great Britain at an address within Great Britain, 48 hours after it was posted; and
— if it was served by email or facsimile transmission, at 09.00 on the first working day after the time of transmission unless the parties sending and receiving the notice agree an earlier time of service.
17 Pursuant to s 1(2)(a) of the Contracts (Rights of Third Parties) Act 1999 the parties intend that no term of this agreement may be enforced by any person who is not a party to this agreement.