Gledhill Response BMAS 150 OVR, Design, Installation & Servicing Instructions

Page 43

   (ii)  damages in respect of special indirect or consequential loss or damage (other than death, personal 

injury and damage to tangible property)

   (iii)  any claim made against the purchaser by any other party (save as expressly provided in paragraph (b) 

above)

  (e)  Except in respect of our liability referred to in paragraph (a) above no claim may be made or action brought 

(whether in contract or in tort including negligence) by the purchaser in respect of any goods supplied by 
us more than one year after the date of the invoice for the relevant goods.

  (f)  Without prejudice to any other term we shall not be liable for any water damage caused directly or 

indirectly as a result of any leak or other defect in the goods.    We cannot control the conditions of use of 
the goods or the time or manner or location in which they will be installed and the purchaser agrees to be 
fully responsible for testing and checking all works which include the goods at all relevant times (up to, 
including and after commissioning) and for taking all necessary steps to identify any leaks and prevent any 
damage being caused thereby.

  (g)  Nothing in these Conditions shall confer on the purchaser any rights or remedies to which the purchaser 

would not otherwise be legally entitled

10.  LOSS OR INJURY 
Notwithstanding any other provision contained herein the purchaser’s hereby agree to fully indemnify us against 
any damages losses costs claims or expenses incurred by us in respect of any claim brought against us by any third 
party for:-
(a) 

any loss injury or damage wholly or partly caused by any goods supplied by us or their use.

(b)  any loss injury or damage wholly or partly caused by the defective installation or substandard workmanship or 

materials used in the installation of any goods supplied by us.

(c) 

any loss injury or damage in any way connected with the performance of this contract.

(d)  any loss resulting from any failure by the purchaser to comply with its obligations under these terms as to 

install and/or check  works correctly.

PROVIDED that this paragraph will not require the purchaser to indemnify us against any liability for our own acts of 
negligence or those of our employees agents or sub-contractors

FURTHER in the case of goods supplied by us which are re-sold and installed by a third party by the purchaser it will 
be the sole responsibility of the purchaser to test the goods immediately after their installation to ensure that inter 
alia they are correctly installed and in proper working order free from leaks and are not likely to cause any loss injury 
or damage to any person or property.

11.   VARIATION OF WARRANTY AND EXCLUSION
Should our warranty and exclusion be unacceptable we are prepared to negotiate for variation in their terms but 
only on the basis of an increase in the price to allow for any additional liability or risk which may result from the 
variation. Purchasers are advised to insure against any risk or liability which they may incur and which is not covered 
by our warranty.

12.   ADVICE
Any advice or assistance given by the Company is provided without charge and is in good faith without undertaking, 
representation or warranty, and we will not accept any liability, whether consequential or compensatory, for advice 
or assistance given.

13.   RISK AND RETENTION OF TITLE
(a)   goods supplied by us shall be at the Purchaser’s risk immediately upon delivery to the Purchaser or into 

custody on the Purchaser’s behalf or to the Purchaser’s Order.  The Purchaser shall effect adequate insurance 
of the goods against all risks to the full invoice value of the goods, such insurance to be effective from the time 
of delivery until property in the goods shall pass to the Purchaser as hereinafter provided.

(b)   property in the goods supplied hereunder will pass to the Purchaser when full payment has been made by the 

Purchaser to us for :-

  (i)   the goods of the subject of this contract.
  (ii)   all other goods the subject to of any other contract between the Purchaser and us which, at the time of 

payment of the full price of the goods sold under this contract, have been delivered to the Purchaser but 
not paid for in full.

(c)   until property in the goods supplied hereunder passes to the Purchaser in accordance with paragraph (2) 

above.

  (i)   the Purchaser shall hold the goods in a fiduciary capacity for us and shall store the same separately from 

any other goods in the Purchaser’s possession and in a manner which enables them to be identified as our 
goods.

  (ii)   the Purchaser shall immediately return the goods to us should our authorised representative so request.  

All the necessary incidents associated with a fiduciary relationship shall apply.

(d)   the Purchaser’s right to possess the goods shall cease forthwith upon the happening of any of the following 

events, namely :-

  (i)   if the Purchaser fails to make payment in full for the goods within the time stipulated in clause 4 hereof.
  (ii)   if the Purchaser, not being a company, commits any act of bankruptcy, makes a proposal to his or her 

creditors for a compromise or does anything which would entitle a petition for a Bankruptcy Order to be 
presented.

  (iii)  if the Purchaser, being a company, does anything or fails to do anything which would entitle an 

administrator or an administrative receiver or a receiver to take possession of any assets or which would 
entitle any person to present a petition for winding up or to apply for an administration order.

(e) 

the Purchaser hereby grants to us an irrevocable licence to enter at any time any vehicle or premises owned 
or occupied by the Purchaser or in the possession of the Purchaser for the purposes of repossessing and 
recovering any such goods the property in which has remained in us under paragraph (2) above.  We shall not 
be responsible for and the Purchaser  will indemnify us against liability in respect of damage caused to any 
vehicle or premises in such repossession and removal being damaged which it was not reasonably practicable 
to avoid.

(f)  

notwithstanding paragraph (3) hereof and subject to paragraph (7) hereof, the Purchaser shall be permitted 
to sell the goods to third parties in the normal course of business.  In this respect the Purchaser shall act in the 
capacity of our commission agent and the proceeds of such sale :-

  (i)   shall be held in trust for us in a manner which enables such proceeds to be identified as such, and:
  (ii)   shall not be mixed with other monies nor paid into an overdrawn bank account.

We, as principal, shall remunerate the Purchaser as commission agent a commission depending upon the 
surplus which the Purchaser can obtain over and above the sum, stipulated in this contract of supply which 
will satisfy us.

(g)   in the event that the Purchaser shall sell any of the goods pursuant to clause (6) hereof, the Purchaser shall 

forthwith inform us in writing of such sale and of the identity and address of the third party to whom the goods 

have been sold.

(h)  if, before property in the goods passes to the 

Purchaser under paragraph (2) above the goods are or 
become affixed to any land or building owned by the 
Purchaser it is hereby agreed and declared that such 
affixation shall not have the effect of passing property 
in the goods to the Purchaser.  Furthermore if, before 
property in the goods shall pass to the Purchaser 
under paragraph (2) hereof, the goods are or become 
affixed to any land or building (whether or not owned 
by the Purchaser), the Purchaser  shall:-

  (i)   ensure that the goods are capable of being removed 

without material injury to such land or building.

  (ii)   take all necessary steps to prevent title to the 

goods from passing to the landlord of such land or 
building.

  (iii)  forthwith inform us in writing of such affixation and 

of the address of the land or building concerned.

The Purchaser warrants to repair and make good 
any damage caused by the affixation of the goods 
to or their removal from any land or building and to 
indemnify us against all loss damage or liability we 
may incur or sustain as a result of affixation or removal.

  (i)   in the event that, before property in the goods 

has passed to the Purchaser under paragraph (2) 
hereof, the goods or any of them are lost, stolen, 
damaged or  destroyed :-

  (ii)  the Purchaser shall forthwith inform us in writing 

of the fact and circumstances of such loss, theft, 
damage or destruction.

  (iii)  the Purchaser shall assign to us the benefit of any 

insurance claim in respect of the goods so lost, 
stolen, damaged or destroyed.

14.   NON-PAYMENT
If the Purchaser shall fail to make full payment for the goods 
supplied hereunder within the time stipulated in clause 4 
hereof or be in default of payment for any other reason then, 
without prejudice to any of our other rights hereunder, we 
shall be entitled to stop all deliveries of goods and materials 
to the Purchaser, including deliveries or further deliveries of 
goods under this contract.  In addition we shall be entitled to 
terminate all outstanding orders.

15.   VALUE ADDED TAX
All prices quoted are exclusive of Value Added Tax which 
will be charged at the rate ruling at the date of despatch of 
invoice.

16.   TRADE SALES ONLY
We are only prepared to deal with those who are not 
consumers within the terms of the Unfair Contract Terms 
Act 1977, the Sale of Goods Act 1979 and the Supply of 
Goods and Services Act 1982.  Accordingly any person who 
purchases from us shall be deemed to have represented that 
he is not a consumer by so purchasing.

17.   JURISDICTION
The agreement is subject to English law for products 
delivered in England and Scottish law for products delivered 
in Scotland and any dispute hereunder shall be settled in 
accordance therewith dependent upon the location.

18.   PRODUCT DEVELOPMENT
Gledhill have a policy of continuous product development 
and may introduce product modifications from time to time.

TERMS

 AND

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ONDITIONS