I. Effect of Conditions
1. These conditions shall constitute the terms of the relationship between any part of Wacker Neuson Ltd, Beacon Business Park, Weston Road, Stafford, ST18 0WL, United Kingdom (hereinafter known as "Wacker Neuson") and the buyer and all or other terms and conditions which may be implied by law, statute or custom are hereby excluded save and insofar as such exclusion shall be prohibited by statute.
2. The buyer accepts that any order placed by him shall be deemed to be made subject to these conditions only, and no other terms or conditions purportedly contained in any other document whether from the buyer or from Wacker Neuson, save where such have been expressly signed by a director of Wacker Neuson, nor any oral statements on the part of or on behalf of the buyer or Wacker Neuson, shall be incorporated into any agreement between the parties.
3. No employee or agent of Wacker Neuson has any authority to vary these conditions and Wacker Neuson will not be bound by any purported variation or addition to these conditions save where such is expressly agreed in writing signed by a director of Wacker Neuson.
4. No employee or agent of Wacker Neuson has any authority to make any representation on behalf of Wacker Neuson whether as to the quality of any goods to be supplied or their fitness for any purpose or as to the effect of these conditions or the practice or intentions of Wacker Neuson or in respect of any matter which may create any liability on the part of Wacker Neuson, and the buyer hereby acknowledges that he has not been induced to order any goods pursuant to any representation whether made orally or contained in any document brochure advertising or promotional material.
5. Wacker Neuson reserve the right from time to time to alter the specification of any goods supplied by them, and any description or specification contained in any brochure or advertising or promotional material shall be for the purpose only of giving a general description of the goods for guidance only.
6. Neither the buyer nor Wacker Neuson shall be bound to each other unless and until Wacker Neuson shall have either delivered or despatched the ordered goods to the buyer or have in writing accepted the buyer% order, whereupon these conditions shall come into effect.
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7. Unless specific agreement has been made between the parties and signed by a director of Wacker Neuson, the price for the goods and all payments required by these conditions shall be paid in cash at the head or main office of Wacker Neuson in Stafford, Staffordshire.
8. Unless a different price has been expressly agreed in writing between Wacker Neuson and the buyer the price to be paid by the buyer for the goods shall be the price specified in Wacker Neuson's published price list which is applicable on the day on which Wacker Neuson notify the buyer that the goods are available for delivery (hereinafter called "the notification date") or dispatch or deliver the goods to the buyer (whichever shall first occur) notwithstanding that any other price may have been quoted in any other quotation, estimate, negotiation, advertising or promotional material or other document or price list. Any such quotation as aforesaid shall have been only for the purpose of guidance.
9. The price specified in the appropriate price list shall be "ex works" and in addition the buyer shall pay to Wacker Neuson all charges incurred in respect of packing, insurance and transportation, if required by the buyer, and all other changes provided for by these conditions.
10. The notification date shall be the date on which a notice by Wacker Neuson to the effect that the goods are available for delivery and specifying the goods, the price, and any other charges then due, Is delivered to the buyer, provided that such notice (hereinafter called "the deliver advice") shall be deemed to have been delivered on the first postal delivery date next following postage thereof by First Class pre-paid post (whether actually delivered or not) and in the event of any dispute between the parties a certificate by a director or officer of Wacker Neuson shall be conclusive evidence for all purposes of (a) the date and manner of posting, and (b) the contents of the notice. No mistake, omission or irregularity in the delivery advice shall avoid it or prevent the computation of the notification date as aforesaid.
11. The price and all charges as aforesaid shall be deemed due and payable on the notification date and the buyer shall pay to Wacker Neuson interest on all sums not so paid from the notification date until actual payment at the rate of 4 percent over Barclays Bank plc base rate from time to time applying calculated from day to day. Such interest shall be deemed to be charges to be paid by the buyer for all purposes of these conditions save that no interest shall be paid of arrears of interest.
12. In the event that Wacker Neuson shall accept any cheque, bill of exchange, promissory note or other negotiable instrument or security in respect of any sum due from the buyer (as to which they shall be under no obligation to do) the buyer shall pay to Wacker Neuson any bank or other charges incurred in respect thereof, whether the same shall be honoured or dishonoured. Actual payment of the price and charges shall be deemed not to have been made until the aforesaid cheque, bill of exchange, promissory note, negotiable instrument or security shall have been honoured.
13. The buyer shall pay the aforesaid price and the charges provided for in these conditions in full and shall not be entitled to make any deduction in respect of any claim or set-off or debt alleged by the buyer against Wacker Neuson, whether such claim, set-off or debt arises out of the same or any other transaction between the parties and whether it is alleged that such has been admitted by Wacker Neuson or not.
14. Unless Wacker Neuson, by writing signed by a director of Wacker Neuson, has permitted the buyer to pay by instalments or has agreed to allow specific credit to the buyer, Wacker Neuson shall be entitled to cancel the order at any time after the buyer has failed to pay the aforesaid price and charges in full within 7 days after payment becoming due and before actual payment, without being under any obligation to do so and without prejudice to any other claim which Wacker Neuson may have arising out of such default. In the event of Wacker Neuson permitting payment by instalments or allowing credit as aforesaid, the whole of the unpaid balance shall fall due for payment if the buyer is in arrears with any instalment for 7 days or if he fails to comply with any terms of the said credit arrangement.
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15. The expression of any delivery date or time for delivery contained in any document whatsoever or in any way advised by Wacker Neuson to the buyer shall be considered only to be an estimate and shall not form any part of any contract between the parties.
16. If, for any reason, Wacker Neuson are unwilling or unable to supply all or any of the goods referred to in the acceptance of order they may, at their absolute discretion, do any one or more of the following:
A) Deliver such goods as are available for delivery and cancel the order in respect of the balance and the buyer shall pay the price and charges in relation to the available goods;
b) Deliver those goods which are available and deliver the balance of the goods at a later date or dates, in which event the buyer shall pay the respective prices and charges referred to in the respective delivery advices;
c) Deliver those goods which are available and substitute for all or any goods referred to in the acceptance of order such goods which Wacker Neuson consider similar to those ordered by the buyer and the substituted goods shall be deemed for all purposes to have been specified in the acceptance of order save that the buyer shall be entitled to refuse the substituted goods and that part of the order shall abate;
d) Delay delivery of all goods;
e) Cancel the whole of the order; provided that whatever action is taken by Wacker Neuson, the buyer agrees to make no claim or complaint whether for compensation, damages or other relief against Wacker Neuson arising out of Wacker Neuson failure to supply all or any goods, or any substitution as aforesaid or any delay or any action as aforesaid on the part of Wacker Neuson.
17. Save as specifically provided for by these conditions the buyer shall not be entitled to cancel the order or any part of it by reason of any delay, partial delivery or incomplete delivery on the part of Wacker Neuson, save where the buyer has served notice on Wacker Neuson requiring delivery of any goods within a period of 20 weeks and Wacker Neuson has not served a delivery advice in respect of such goods within such period, but such notice shall not affect the liability of the buyer to accept any goods which are the subject of a delivery advice served at any time before the expiry of such period.
18. Wacker Neuson shall not be under any obligation to deliver into the possession of the buyer any goods referred to in any delivery advice until actual payment of all prices and charges specified in such delivery advice or provided for in these conditions. All machines are delivered complete with instructions-parts-repair manual
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19. The ownership of all goods which are referred to in a delivery advice shall remain in Wacker Neuson until actual payment of all prices, charges interest and other sums provided for by these conditions in respect of all goods referred to therein. This condition shall apply notwithstanding any agreement by Wacker Neuson to accept any delay in payment whether by means of instalments, extended or short-term credit, acceptance of any cheque, bill of exchange, promissory note, negotiable instrument or security or whatever and notwithstanding that Wacker Neuson may have permitted to have possession or use of the goods or any of them.
20. In the event that Wacker Neuson may permit the buyer to have the use of any goods, the ownership whereof remaining in Wacker Neuson in accordance with the preceding condition, the following shall apply:-
a) The buyer shall hold the goods as bailee, and not as a buyer in possession and shall pay to Wacker Neuson the weekly sum in respect of such bailment of an amount equal to 5% of the total sale price of the goods.
b) The buyer shall not without the previous written consent of Wacker Neuson signed by a director of Wacker Neuson do any of the following in respect of the goods: sell; charge or mortgage; part with or share possession; use or permit any other person to use; cause or permit them to become affixed to any land, building or other goods; permit them to become the subject of any execution or distraint; lose, damage, destroy or in any manner dispose of them.