1. In these Conditions the following terms shall have the following meanings:-
“Supplier” means West Mercia Fork Trucks Ltd.
“Customer” means the Customer of the Supplier
“Contract” means any Contract for the sale of Goods by the Supplier to the Customer.
“Goods” means any Goods forming the subject of this Contract including parts and components of or materials incorporated in them
2. Quotations by the Supplier unless otherwise stated in them shall be open for acceptance within 30 days of the date of the Quotation.
3.1 No Contract shall come into existence until receipt of the Customer’s order (however it is given) is accepted by the earliest of:-
3.1:1 the Supplier’s written acceptance; and
3.1:2 delivery of the Goods; and
3.1:3 the Supplier’s invoice
or the order form has been completed and signed on behalf of the Customer and the order acknowledgment has been signed on behalf of the Supplier.
3.2 These Conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Customer;
3.3 No variation or amendment of these Conditions or verbal promise or commitment related to it shall be valid unless committed to writing and signed by or on behalf of both the Supplier and the Customer.
4.1 Unless expressly stated otherwise the prices for the Goods are ex-works and exclude packing insurance and carriage, Value Added Tax, and other taxes or duties.
4.2 The Supplier shall have the right to adjust its prices for any increase in the price of materials parts labour transport changes in work or 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 the Customer of written notice of the change.
5.1 All invoices are payable without discount of any kind in pounds sterling before delivery of the Goods and in no circumstances shall the Customer be entitled to make any deduction or withhold payment for any reason at all.
5.2 Without prejudice to any other rights of the Supplier, if the Customer fails to pay the invoice price by the due date the customer shall pay interest on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) on a daily basis at a rate of four per cent per annum over the base rate from time to time quoted by Lloyds Bank plc and reimburse to the Supplier all costs and expenses (including legal costs) incurred in the collection of any overdue amount.
6.1 Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Supplier and shall not pass to the Customer until the amount due under the invoice for them (including interest and costs) together with all other sums owed by the Customer to the Supplier has been paid in full.
6.2 Until the title passes the Customer shall hold the Goods as bailee for the Supplier and shall store or mark them so that they can at all times be readily identified as the property of the Supplier.
6.3 The Supplier may at any time before title passes and without any liability to the Customer:-
6.3:1 repossess and dismantle and use or sell all or any of the Goods and by doing so terminate the Customer’s right to use, sell or otherwise deal in them; and
6.3:2 for that purpose or determining what if any Goods are held by the Customer and inspecting them, enter any premises of or occupied by the Customer.
6.4 Until title passes the entire proceeds of sale of the Goods shall be held in trust for the Supplier and shall be held in a separate designated account and not mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the Supplier’s money.
6.5 The Supplier may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Customer.
Risk, delivery and performance
7.1 The Goods are delivered to the Customer when the Supplier makes them available to the Customer or any agent of the Customer or any carrier (who shall be the Customer’s agent whoever pays its charges) at the Supplier’s premises or other delivery point agreed by the Supplier.
Note that delivery takes place between 8am and 4.30pm. Our carrier requires someone to sign for the goods or they will not be left. Please note that any amount charged for delivery, and even, for items with Free Delivery that this applies to one delivery attempt only therefore if you or someone you approve is not available to receive and sign for the first attempted delivery; then you would have to either collect from our transport contractor’s depot or pay for a redelivery. You are strongly advised to check the goods for damage before accepting them as claims for damage cannot be made if the goods are signed for and accepted in good condition, or unchecked. All our delivery charges are for mainland UK, however, additional fees may be incurred for deliveries to residential addresses. For other zones, Highlands and Islands and N.I. delivery addresses we will contact you with an amended delivery charge for your approval before processing your order.
7.2 Risk in the Goods passes when they are delivered to the Customer.
7.3 Any dates quoted by the Supplier for the delivery of the Goods are approximate only and shall not form part of the Contract and the Customer acknowledges that in the performance expected of the Supplier, no regard has been paid to any quoted delivery dates.
7.4 If the Customer fails:-
7.4:1 to take delivery of the Goods on the due date; and
7.4:2 to provide any instructions or documents required to enable the Goods to be delivered on the due date, the Supplier may on giving written notice to the Customer store or arrange for the storage of the Goods, and on the service of the notice:-
7.4:3 risk in the Goods shall pass to the Customer;
7.4:4 delivery of the Goods shall be deemed to have taken place and
7.4:5 the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from Customer’s failure.
7.5 The Supplier 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 the Customer to refuse to accept any delivery or performance of or repudiate the Contract.
7.6 Colour may vary to that shown in the product image.
8.1 Any claim for non-delivery of any of the Goods despatched by the Supplier shall be notified in writing by the Customer to the Supplier within ten days of the date of the date of the Supplier’s invoice.
8.2 Any claim that any of the Goods have been delivered damaged, are not of the correct quantity, or do not comply with their description, shall be notified in writing by the Customer to the Supplier within three days of the delivery of the Goods.
8.3 Any alleged defect shall be notified by the Customer to the Supplier within three days of the delivery of the Goods, or in the case of any defect which is not reasonably apparent on inspection within seven days of the defect coming to the Customer’s attention and in any event within ninety days of the delivery of the Goods.
8.4 No claims in respect of Goods allegedly damaged in transit or lost will be accepted if the carrier has been given a clear receipt for the Goods, or if the Customer signs with conditions for receipt of the Goods including but not limited to Goods unexamined or Goods unchecked or if the Supplier is not notified in writing of such loss or damage and of the relevant particulars within the same time limits as those appropriate to the claim under the standard terms and conditions of carriage for the time being in force of the carrier concerned. Such notification through the carrier shall be given by the Customer and the Supplier shall be duly advised thereof.
8.5 Any claim under this condition must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Goods.
8.6 The Supplier shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Customer shall (if so requested in writing by the Supplier) promptly return any of the Goods the subject of any claim and any packing materials securely packed in their original container and carriage paid to the Supplier for examination.
8.7 The Supplier shall have no liability with regard to any claim in respect of which the Customer has not complied with the claims procedures in these Conditions.
8.8 Your order will be despatched carefully secured on a low loader or similar as operated by a transport contractor of our choice.
Please examine it thoroughly on arrival for any damage.
If the item is damaged sign the transport contractor’s note to that effect and inform us within 24 hours. We will then claim on your behalf from the transport contractor.
We regret that we cannot entertain any claim for damaged goods that have been accepted and signed for as in good condition.
Scope of Contract
9. Under no circumstances shall the Supplier have any liability of whatever kind for:-
9.1 Any defects resulting from wear and tear, accident, improper use by the Customer, or use by the Customer except in accordance with the instructions or advice of the Supplier or the manufacturer of any Goods or neglect or from any instructions or materials provided by the Customer.
9.2 Any of the Goods which have been adjusted modified or repaired except by the Supplier.
9.3 The suitability of any of the Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Supplier.
9.4 Any substitution by the Customer of any materials or components not forming part of any specification of the Goods agreed in writing by the Supplier.
9.5 Any descriptions, illustrations, specifications, figures as to performance, drawings, and particulars of weights and dimensions submitted by the Supplier, contained in the Supplier’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 or be treated as warranties or representations;
9.6 Any technical information, recommendation, statements, or advice furnished by the Supplier its employees or agents not given in writing in response to a specific request from the Customer before the Contract is made.
Extent of liability
10.1 The Supplier shall have no liability to the Customer for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the Contract or any negligence breach of statutory duty or other duty on the part of the Supplier or in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract except:-
10.1:1 for death or personal injury resulting from the Supplier’s negligence; and
10.1:2 as expressly stated in these Conditions.
10.2 If the Customer establishes that any of the Goods have not been delivered, have been delivered damaged, are not of the correct quantity, or do not comply with their description, the Supplier shall at its option replace with similar Goods any of the Goods which are missing lost or damaged or do not comply with their description, allow the Customer credit for their invoice value, or repair any damaged Goods.
10.3 If the Customer establishes that any of the Goods are defective the Supplier shall at its option replace with similar Goods or repair any defective Goods, allow the Customer credit for their invoice value or to the extent that the Goods are not of the Supplier’s manufacture, assign to the Customer (so far as the Supplier is able to do so) any warranties given by the manufacturer of the Goods to the Supplier.
10.4 The delivery of any repaired or replacement Goods shall be at the Supplier’s premises or other delivery point specified for the original Goods.
10.5 No claim against the Supplier shall be entertained for any defect arising from any design or specification provided or made by the Customer or if any adjustments alterations or other work have been done to the Goods by any person except the Supplier.
10.6 The Supplier shall not be liable where any of the Goods the price of which does not include carriage are lost or damaged in transit and all claims by the Customer shall be made against the carrier. Replacement for such lost or damaged Goods will if available be supplied by the Supplier at the prices ruling at the date of despatch.
10.7 In no circumstances shall the liability of the Supplier to the Customer under this condition exceed the invoice value to the Goods.
Health and Safety at Work Act 1974
11. For the purpose of the Health and Safety at Work act 1974 the Customer hereby undertakes to ensure that the Goods will be safe and without risks to health and safety when properly used and in particular to examine the Goods to establish whether they are safe to use in the condition in which they are delivered and (without prejudice to the generality of the foregoing) the Customer undertakes not to use the Goods without first satisfying its public liability and/or employers liability insurers or some other person (nor being the Customer or an employee of the Customer) qualified and competent in such matters that the Load Chains, Brakes, Steering Systems, Tyres, Forks and Hydraulics are safe and without risk to health and safety when properly used and that the Goods satisfy all statutory requirements for the time being in force.
12.1 The Supplier shall have a lien on all the Customer’s property in the Supplier’s possession for all amounts due at any time from the Customer and may use sell or dispose of that property as agent for and at the expense of the Customer and apply the proceeds in and towards the payment of such amounts on twenty eight days notice in writing to the Customer. On accounting to the Customer for any balance remaining after payment of any amounts due to the Supplier and the costs of sale or disposal the Supplier shall be discharged from any liability in respect of the Customer’s property.
12.2 The Supplier may at its discretion suspend or terminate the supply of any Goods if the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or any other document with the Supplier or becomes insolvent, has an administrative receiver appointed of its business, or is compulsorily or voluntarily wound up or the Supplier bona fide believes that any of those events may occur, and in the case of termination may forfeit any deposit paid.
12.3 If the Goods are manufactured in accordance with any design or specification provided or made by the Customer, the Customer shall compensate the Supplier in full on demand for all claims expenses and liabilities of any nature in connection with them, including any claim, whether actual or alleged, that the design or specification infringes the rights of any third party.
12.4 The Customer shall not assign or (without first obtaining the Supplier’s written consent) sub-let the Contract in whole or in part.
13. West Mercia Fork Truck Service Ltd do not disclose buyers’ information to third parties other than when order details are processed as part of the order fulfilment. In this case, the third party will not disclose any of the details to any other third party.
a. Take and fulfil customer orders
b. Administer and enhance the site and service
c. Only disclose information to third-parties for goods delivery purposes
14. The Supplier shall not be liable for any failure in the performance of any of its obligations under the Contract caused by factors outside its control.
Law and jurisdiction
15. The Contract shall be governed by English law and the Customer consents to the exclusive jurisdiction of the English courts in all matters regarding it except to the extent that the Supplier invokes the jurisdiction of the courts of any other country.
16.1 Any notice given under these deed shall be in writing and may be served:-
16.1.2 by registered or recorded delivery mail;
16.1.3 by facsimile transmission (the latter confirmed by post);
16.2 Each party’s address for the service of notice shall be its above mentioned address or such other address as specified by notice to the other.
16.3 A notice shall be deemed to have been served:-
16.3:1 if it was served in person, at the time of service;
16.3:2 if it was served by post, forty eight hours after it was posted; and
16.3:3 if it was served by facsimile transmission, at the time of transmission