(ii) If the buyer shall commit an act of bankruptcy or enter into any composition with his creditors, or, if a company, be wound up save for the purpose of reconstruction, or if a liquidator or receiver is appointed in respect of the buyer or his assets;
(iii) If any judgment, execution or distraint is levied upon the buyer or if any judgment against the buyer remains unsatisfied for 30 days;
(iv) If Wacker Neuson shall serve upon the buyer a notice in writing to the effect that in the opinion of Wacker Neuson the well-being of the goods is at risk (as to which such notice shall be conclusive evidence that the opinion is honestly held);
g) For the efficacious operation of clause 20(F) hereof:
(i) the buyer shall notify Wacker Neuson forthwith of the occurrence of any of the facts referred to in clause 20(f) hereof;
(ii) on the occurrence of any of the aforesaid fads, Wacker Neuson shall be entitled forthwith to recover possession of the goods from the buyer or any other person;
(iii) the buyer hereby irrevocably grants to Wacker Neuson a licence to enter upon any premises where such goods are held at any time for the purpose of inspecting the condition of the goods or any records held by the buyer concerning the use, maintenance and repair of the goods and in the event of Clause 20(f) coming into effect for the purpose of recovering possession thereof, and Wacker Neuson shall be entitled to use reasonable force to effect entry for the aforesaid purposes without compensation to the buyer;
(iv) the buyer shall indemnify Wacker Neuson and keep them safe against any claim by any person whatsoever arising out of Wacker Neusongs effecting an entry to any premises for any of the aforesaid purposes;
h) In the event of the buyer selling, leasing exchanging or in any manner disposing of the goods, whether in breach of these conditions or whatever, without prejudice to any remedy which Wacker Neuson may have against any other person, any proceeds of such disposition or leasing, or any exchanged goods, shall be held by the buyer as trustee for Wacker Neuson and to the order of Wacker Neuson, and shall be treated in like manner as the goods disposed of, save that proceeds comprising money shall forthwith be paid to Wacker Neuson insofar as such money does not exceed the sums owed by the buyer in respect of all goods ordered from Wacker Neuson. To the extent that the buyer has not received the full consideration for the goods he shall assign to Wacker Neuson on demand all rights to require any balance of the consideration from any other person. The buyer shall be responsible to Wacker Neuson and make good any loss of damage in respect of the goods from any cause whatsoever and whether such loss or damage is occasioned by the negligence of the buyer, his servants or agents, or any act or omission by any third party, or force majeure, act of the Queen& enemies or any insurable risk of any kind, whether or not attributable to any fault of any person.
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21. The risk shall pass to the buyer on the notification date notwithstanding that the goods may remain the property of Wacker Neuson and remain in Wacker Neuson's possession.
22. Unless and until the buyer delivers to Wacker Neuson documentary evidence that there is in force in relation to any goods of which ownership remains in Wacker Neuson, a policy of insurance for the benefit of Wacker Neuson against the usual risks, Wacker Neuson & may, but without any obligation to do so, insure such goods in their own name and the costs of such insurance premiums shall be a charge owed to Wacker Neuson by the buyer within the meaning of Clause 9 hereof.
23. The buyer hereby assigns to Wacker Neuson the benefit of any insurance payments which may be received by the buyer in respect of any loss or damage to goods whilst the same remained the property of Wacker Neuson, but Wacker Neuson shall, on receipt of such insurance payments, pay to the buyer any sums which are in excess of all sums owed by the buyer to Wacker Neuson pursuant to these conditions.
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VI. Defects and quality
24. Insofar as any goods have been manufactured by Wacker Neuson upon their own premises, Wacker Neuson will make good free of charge (save for the cost of transportation) any goods or part thereof which were defective when the goods were delivered to the buyer, provided that-
a) Wacker Neuson shall be under no obligation under this condition unless:-
(i) the buyer notifies Wacker Neuson in writing of such defect within 3 months after the notification date in respect of the goods in question where the goods have been used for double-shift working or have been hired out by the buyer, or in any other case, 6 months after the appropriate notification date; and
(ii) the defective goods have not been used by the buyer after discovery of the defect; and
(iii) the buyer has, before such notification, complied with all his obligations under these conditions;
b) Wacker Neuson shall not under any circumstances be under any obligation under this condition in relation to the following: special designs; new designs; springs; flexible drives or any other goods or parts which have been declared by Wacker Neuson before the delivery advice to be excluded from this provision:
c) Wacker Neuson may, at their absolute discretion, replace or repair the goods or the defective part thereof, or substitute therefor goods or parts similar to those delivered to the buyer;
d) Any replaced, required or substitute goods shall be treated for all purposes of these conditions as if they had been specified in the original delivery advice.
25. In all other cases Wacker Neuson's liability is restricted to transferring to the buyer any rights against or the benefits of any warranty given, by the manufacturer of the goods to Wacker Neuson.
26. Save as specifically provided by these conditions Wacker Neuson give no warranty as to the condition of any goods, their quality, suitability or fitness for any purpose, and Wacker Neuson shall not under any circumstances whatever be under any obligation to make any compensation in money for any defect in the good or the performance thereof.
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27. Each and every item referred to in the acceptance of order shall be deemed to be the subject of a separate agreement between the buyer and Wacker Neuson and the buyer shall not be entitled to reject any goods by reason of any failure on the part of Wacker Neuson to deliver any other goods ordered by the buyer.
28. The buyer shall indemnify Wacker Neuson and hold them safe against any claim of any kind by any person arising out of the use of the goods by the buyer for any purpose whether or not ownership therein has passed to the buyer and whether such claim arises out of any negligence, breach of duty or any fault on the part of Wacker Neuson, their servants or agents.
29. Wacker Neuson shall not be under any obligation or liability to make good any defect or pay any monetary compensation or pay damages to the buyer in respect of any breach of contract or negligence, save as specifically provided for by these conditions and Wacker Neuson shall not under any circumstances be liable to compensate the buyer in respect of any consequential loss or loss of profits howsoever caused.
30. In the event that the buyer shall be a limited company or corporation, all directors thereof shall be liable, jointly and severally with the buyer for the due pertormance of all conditions expressed herein to be pertormed by the buyer, unless Wacker Neuson has expressly agreed in writing signed by a director to waive this condition. The signatories to the order placed by the buyer warrant thereby that they have the authority of the said directors to agree to this condition.
31. Insofar as Wacker Neuson may waive or relax any of the conditions herein such waiver or relaxation shall be in respect only of the specific facts concerned therewith, and shall not amount to any general relaxation or waiver of the condition for any other purpose.
32. In the event of any dispute or issue arising between the parties such issue or dispute is hereby referred to the arbitration of a single arbitrator to be appointed by the President of the Chartered Institute of Arbitrators in default of agreement between the parties who shall have power to make such interim awards as he considers appropriate.
33. These conditions and the relationship between the parties shall be governed by English Law.
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VIII. Special conditions for online purchase orders
Insofar as the customer orders via our e-store (www.shop.wackerneuson.com), the following conditions apply additionally:
34. Via our e-store, we only sell to companies (§ 14 BGB). According to definition by law, a company is a natural or legal person or a partnership having legal capacity, who operates as commercial or independent professional activity when conducting a transaction. Sale to consumers (§ 13 BGB) shall be excluded.
35. Our presentation of goods in the e-store does not contain a binding sales offer. The offer to complete a purchase agreement is made by the customer by clicking on the “Place Order” button after having filled out the complete order page. Before that, the purchase order can be viewed and changed via the “Cart” button. Before submitting the purchase order, the customer can verify and change their delivery and payment method details. The customer can view the Terms and Conditions during the order process via links, and can save them onto their computer and/or print them. The customer is bound to their order for 14 days, i.e. the contract will be bindingly completed if we accept the purchase order within this period.
36. After sending the purchase order the customer will receive an automatic e-mail with a confirmation about the receipt of purchase order with us (order confirmation), but which does not present a contract acceptance. We declare the acceptance of contract within the term of acceptance according to paragraph 2 by sending the goods or via a separate e-mail, as soon as the goods have left the Spare Parts Department (shipping confirmation) or we are able to confirm the manufacturing of the goods (order confirmation).
37. Insofar as the purchase order contains several items, the contract will only be concluded for those items expressly listed in our shipping or order confirmation. The preceding is also valid if the customer has already paid or authorised payment of the purchase price before conclusion of contract due to the selected method of payment. Insofar as the contract is not concluded for any reason, we will inform the customer via e-mail (with partial acceptance of contract together with the shipping or order confirmation for the available items) and refund the advance payment immediately.
38. The conclusion of contract shall occur in the language of the country of the customer’s invoice and delivery address. The contract text will be saved by us maintaining data protection and is available to the customer for download at the e-store.
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