Terms and conditions for Business Customers
1.1 In these terms and conditions:
1.1.1 "Washtech" means Washtech Limited and its successors and assigns;
1.1.2 "the customer" means the person, firm, company or entity to whom goods and/or services are supplied or agreed to be supplied by Washtech whether by sale and purchase or on consignment or under a rental agreement.
1.1.3 "the goods" means all goods which are the subject matter of any contract for purchase between Washtech and the buyer and any goods supplied by Washtech to the customer, and, where the context requires, includes any part or portion of the goods.
1.1.4 "these terms" means these terms and conditions for business customers of Washtech.
1.1.5 "on consignment" means the supply by Washtech to the buyer of goods for the purposes of their promotion, demonstration and/or display and otherwise than pursuant to a contract for sale and purchase or rental agreement.
2 Application of these general terms
2.1 These terms apply to all contracts for the supply of the goods and/or services by Washtech to the customer.
2.2 The customer acknowledges that it acquires the goods and/or services from Washtech for the purposes of a business and that these terms shall have full effect notwithstanding any contrary or inconsistent provision in the Consumer Guarantees Act 1993.
3 Entire Agreement
3.1 These terms constitute the entire agreement between Washtech and the customer for the supply of the goods and/or services, and the buyer acknowledges that they shall apply to the exclusion of any standard terms or conditions of trade of the customer.
3.2 No modifications, alterations or additions to these terms shall form part of the contract unless accepted by Washtech in writing.
4.1 The customer shall pay the price indicated on the invoice, order form, or other similar document issued by Washtech.
4.2 Where the price indicated is a quotation or tender submitted by or on behalf of Washtech then the following shall apply:
4.2.1 The quotation or tender shall, unless otherwise stated, constitute an invitation to the customer to make an offer to contract, and no contract shall be formed until the customer's order has been accepted by Washtech.
4.2.2 The customer shall also, in addition to the price indicated in the quotation or tender, pay any difference between the price in effect at the date of the quotation or tender and the price in effect upon delivery of the goods and/or performance of the service.
4.3 The customer shall pay any goods and services tax, or any other tax which may be payable in respect of the supply of the goods and/or performance of the service.
4.4 The customer shall make payment in full and free from any deduction, withholding, setoff, or counterclaim whatsoever.
5 Payment Terms
The customer shall pay all amounts due to Washtech by the 20th of the month following the month of invoice (in the case of a sale) and on the agreed dates (in the case of a rental). Washtech may, however, in its absolute discretion in any case require payment on some other basis.
5.2 At any time before completion of any contract, and as a condition precedent to the performance by Washtech of the contract, Washtech may request the customer to produce evidence in a form and of a nature acceptable to Washtech of the customer's ability to pay all moneys which may be or become due to Washtech under the contract, and if the buyer shall fail to produce such evidence, then the buyer shall be deemed to have made default under the contract, and Washtech, shall be entitled, without prejudice to any other remedy it may have, to rescind the contract.
5.3 Notwithstanding any credit period allowed by Washtech to the customer, full payment shall become immediately due and payable upon the customer becoming insolvent, or if the customer resolves to wind up, or is ordered to be wound up, or has a receiver, liquidator, or official manager appointed in respect of all or any of its assets.
5.4 In the event of any payment not being made on or prior to its due date the customer shall pay to Washtech interest at the rate of 1.5 percent per day on the outstanding balance until such time as payment is made in full.
5.5 If Washtech incurs any liability, costs, charges, or expenses, including solicitor and own client costs or whether relating to repossession, storage, or resale of goods, or otherwise, in the course of enforcing any of its rights under these terms or otherwise as a result of any breach of these terms by the customer, then the amount thereof shall be payable by the customer to Washtech upon demand.
6 Performance and Delivery
6.1 Performance of the contract by Washtech is subject to Washtech being able to obtain all export and import licences, permits to remit moneys abroad, and the like, necessary to enable Washtech to import and pay for any goods or materials required for completion of the contract.
6.2 Delivery is to be made ex-works or warehouse, as applicable.
6.3 The customer shall not reject nor refuse to accept the goods and delivery shall constitute deemed acceptance by the customer.
6.4 If the goods are delivered in a damaged condition, or if there is a shortage of delivery, the customer shall advise Washtech within three days of such delivery, and shall confirm the same to Washtech in writing within seven days of such delivery, failing which Washtech will be under no responsibility whatsoever for any such damage or shortage of delivery.
6.5 Although Washtech will use its best endeavours to deliver the goods and/or perform the service within the time specified by the customer, such dates shall not be of the essence of the contract, and Washtech shall not be liable for any loss, expense, injury, damage, or claim whatsoever or howsoever arising resulting from any delay, howsoever such delay is caused.
6.6 The goods will be packed by Washtech and such packaging will be generally suitable for the protection of the goods under normal transport conditions and for dry indoor storage and temperature climates up to three months from the date of delivery, provided that the packaging is not damaged or disturbed. Washtech shall not be liable for any damage, loss, or injury (whether direct or indirect) caused to the customer arising from the packaging of the goods.
7.1 In the case of a sale, risk in the goods shall pass to the customer when the customer takes delivery of the goods, provided that if the customer fails to accept the goods, or requests that delivery of the goods be delayed, then risk in the goods shall be borne by the customer from the time of such failure or request, as he case may be.
8 Warranty and Liability
8.1 Except as provided in this clause, Washtech gives no warranties or representations with respect to any goods and services supplied and excludes all liability that it or any of its employees or suppliers may have to a customer whatsoever including without limitation for any loss, damage or expense sustained or incurred by the customer or any party in consequence of or resulting directly or indirectly out of the supply, performance or use of any goods and services or for any negligence by Washtech or its employees whatsoever. However, provided the customer has fulfilled the terms of payment for the goods, Washtech will repair or replace, as it shall in its sole discretion think fit, any part of the goods which has been manufactured by Washtech and which proves to be faulty during the warranty period by reason only of defective materials or defective workmanship.
8.2 If any defect becomes evident within the warranty period in any part of the goods not manufactured by Washtech, Washtech will use its best endeavours to obtain for the buyer the benefit of any guarantee or warranty given by the manufacturer of such part, but shall otherwise be under no liability whatsoever in respect of such defect.
8.3 In this context "warranty period" means the period of time specified in the tender or quotation commencing on the date of delivery of the goods. If no period is specified in a tender or quotation, then the warranty period is as stated on the Washtech Warranty Policy current at the time of sale (available from the company on request).
8.4 Washtech shall not be liable under paragraphs 8.1, 8.2 and 8.3 unless it is satisfied that the goods have since delivery been stored, used, installed, operated, and maintained properly and in accordance with any instructions or recommendations given by Washtech or the manufacturer of the goods or any component part. Instructions for use of a machine may be found on Washtech's website at [insert web address].
8.5 Washtech shall incur no liability pursuant to this clause unless the customer notifies Washtech in writing within seven days upon any defeat occurring and unless the customer provides Washtech promptly with all information concerning the goods, such defect and the use, installation, maintenance, and storage of them since delivery as Washtech may reasonably require.
8.6 In no circumstances whatsoever shall Washtech be liable for damage, injury or loss (including consequential loss) of any kind whatsoever to any property or persons or animals or other thing howsoever caused arising from the goods, their design, manufacture, installation or operation.
The cost of removing or dismantling the goods or defective part, its carriage to and from Washtech's premises, its investigation, testing, repair or replacement by Washtech (except where the part proves to be faulty by reason of defective materials or defective workmanship) and its reinstallation shall be borne by the customer.
Washtech shall be under no liability to the customer in respect of the description, quality, fitness for any purpose of the goods and all terms, conditions and warranties in respect of such description, quality or fitness whether statutory or otherwise and whether express or implied are hereby expressly excluded.
In the event that Washtech cannot rely on the exclusion in Clauses 8.6 or if the customer is ever entitled to compensation from Washtech, its employees or suppliers, the maximum combined amount of all of their liability to the customer is the price that the customer has paid for the goods and services to which such compensation relates or the statutory minimum (whichever is the lower).
Where the customer is a business customer, it agrees that is acquiring the goods and services for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply.
In the event of any liability of whatsoever nature being established against Washtech in any way whatsoever for which a specific remedy is not otherwise given in these terms, Sections 6-10 inclusive of the Contractual Remedies Act 1979 are hereby expressly excluded, and the sole remedy for misrepresentation or repudiation or breach of contract or any of the other matters to which Sections 6-10 inclusive relate shall be damages. Such damages shall be limited to the sum of ten per centum of the contract price for the supply of the goods and/or performance of the service by Washtech.
9 Goods supplied on consignment
9.1 Where the goods are supplied on consignment Washtech retains legal and beneficial ownership of the goods and the customer acknowledges that it holds the goods in a fiduciary capacity as bailee on behalf of Washtech and will store the goods in such a way that it is clear they are the property of Washtech. The buyer will insure and keep insured the goods supplied on consignment against all risks and, upon request from Washtech, will provide to Washtech satisfactory evidence of such insurance.
10.1 If the goods are manufactured or supplied by Washtech in accordance with any specification, drawing or design provided by or on behalf of the buyer, and the goods or manufacture or supply of them constitutes an infringement of any patent, copyright, or the property of any person, then the customer shall indemnify Washtech against any claim, damage, loss, or expense made against or suffered by Washtech arising out of or in connection with that infringement.
11 Dispute resolution
11.1 In the event of any dispute arising between Washtech and the customer, the parties shall explore whether the dispute can be resolved by agreement between them using an informal dispute resolution technique, such as negotiation, mediation, independent and expert appraisal, or any other alternative dispute resolution technique. In the event that the dispute is not resolved by such agreement within fourteen days of written notice by one party to the other, either party may refer the dispute to arbitration in terms of the Arbitration Act 1996.
12 Personal Property Securities Act 1999 ("PPSA")
12.1 The customer acknowledges and agrees that Washtech has a Security Interest in all goods supplied to the customer ("the Collateral") and in the Proceeds of the Collateral as security for all amounts owed by the customer to Washtech on any account whatsoever. The customer will ensure that no other party is granted a Security Interest in the Collateral without Washtech's prior written consent.
12.2 The customer will at the customer's cost provide Washtech with all information and do anything reasonably required by Washtech and pay any registration costs required to ensure that Washtech has a Perfected Security Interest with the priority required by Washtech under the PPSA.
In the event that the customer is in default of its obligations pursuant to this Agreement Washtech shall notwithstanding section 109 of the PPSA and in addition to the rights thereunder be entitled to remove and take possession of and sell (by auction, public tender, private sale or any other method which the Lender might reasonably consider to be appropriate in the circumstances) the Collateral and for such purpose the customer hereby gives Washtech licence by its agents to enter into, and if necessary, to break into any building occupied by the customer and as the agent of the customer to enter upon any premises where the customer might enter upon to search for, remove and take possession of the Collateral without being liable in any way to the customer or any person claiming under the customer for doing that.
The customer agrees that nothing in sections114(1)(a), 117(1)(c), 133 and 134 of the PPSA will apply to this agreement or the Security Interest, and the customer waives the customer's rights pursuant to sections 107(2)(f) and (g), 121, 125, 129, 131 and 132 of the PPSA and waives its rights to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest created by this agreement.
If the customer sells or trades any Collateral then the customer undertakes to sell or trade such Collateral at market value. While the customer deal as principal and Washtech shall not be liable to any person with whom the customer deals, nevertheless the customer will hold the entire proceeds of sale or other dealing in respect of the Collateral in trust for Washtech in a separate account for Washtech and the customer shall not deal with the money of Washtech in any way adversely to Washtech.
For the purposes of this clause capitalised expressions have the meaning prescribed to them in the PPSA.
The customer agrees that Washtech and any other associated companies of Washtech may collect information about the customer. The information may be obtained from the customer and others. The customer may refuse to provide any information sought by Washtech but if the customer fails to provide the information, Washtech may refuse to provide goods or services or any credit.
The customer may ask to see any information held by Washtech as long as it is readily retrievable and the customer may ask for any details that are wrong to be corrected.
Washtech and it's associated companies may also hold the information, share it with it's associated companies, employees and contractors, with credit reference agencies and with collection agencies. This enables Washtech and associated companies to:
(i) provide services to the customer and others;
(ii) send invoices and recover money owed to Washtech;
(iii) keep the customer informed of goods and services available from Washtech and other people;
(iv) exercise any lawful right that Washtech has (which includes registration and maintenance or financing statements under the Personal Property Securities Act 1999).
14.1 In offering to supply goods Washtech may provide advice and/or an analysis of the customer's requirements to define specification of goods to assist the customer in deciding which goods to order. Such decisions usually involve considerations of capacity, machine power, size, available space, cost and other factors. The responsibility for the final specification and order rests with the customer. Any analysis of potential cost savings provided by Washtech needs to be checked and confirmed by the customer. The customer relies on its own inspection of the goods and its own skill and judgment and not that of Washtech as to the fitness for any purpose
14.2 Washtech accepts no liability for actual or consequential damage resulting from use of or inability to use any goods.
14.3 Matters which a customer may take into account in respect of any goods supplied by us include (but are not limited to) the following matters: wash machines heat and pump high volumes of water containing commercial detergents over washware to remove soil from the washware; the effectiveness of the machine washing process depends on the extent and nature of the soil, the time the washware spends in the machine, detergent type and concentration in the water and the extent of direct exposure of the surfaces of the washware to the water sprayed by the wash jets; soiling, particularly heavy, baked-on or aged soils may not be removed entirely in a single cycle or pass through the machine; some physical scraping may be required to assist in the removal of some soil; commercial detergents are often caustic based and hazardous - caution is required in transporting and connecting them. Appropriate handling methods and the suitability of the detergent for the items being washed must be confirmed with the detergent supplier - especially for items such as aluminium, crystal glass and other products which can react with caustic. With the high volumes of wash water involved there may be some overspray from the machine. Warewashing machines sanitise washware by rinsing with very hot water; items of washware coming through the machine - particularly metal items - may be very hot and carry some water. Care is required when unloading the machine to ensure that any water trapped in recesses etc. in the washware is run off into the machine, and even then the washware will be dripping some water. The machine must therefore be installed on a sound, waterproof self-draining preferably non-slip floor with the expectation of some water and steam in the area of which adjacent surfaces should be tolerant. Even when a drier is installed there may be some residual water on washware, particularly in crevices or recesses; drying is rarely 100% effective - drier performance will depend on many factors including the specification of the drier, the type and nature of the surface of the washware, the ability of surfaces to drain freely within the machine, the use of appropriate chemicals including detergent and drying agent, and ambient temperature and humidity; some steam will be emitted from the machine and extraction and good ventilation must be considered in consultation with ventilation professionals. As high current electricity and/or steam are used to power and heat the machine, electrical and heat hazards are present. External surfaces and washware may be hot enough to burn skin; machine moving parts including doors and especially conveyor systems may involve mechanical pinch point hazards and operators must take care and contain loose hair and garments. Transportation and washing of glassware can involve some breakage with resultant hazardous sharp edges; shards of glass may remain in glassracks or be left in the machine and be a hazard to anyone cleaning the machine. Items being washed may be large and staff must be trained and provided with the appropriate techniques and/or equipment to load and unload the machine. The logistics of delivering washware to and from the machine can impact significantly on the effective capacity of the machine and should be given full consideration before the machine is installed; gross soiling and debris such as paper, plastic film and large pieces of food or vegetable matter etc. must be removed from washware before it is placed into the machine - unless the machine is specifically designed for waste disposal purposes, and specified as such; efficient use of the machine may include loading washware into appropriate racks, trolleys and/or other containers, pre scraping or rinsing of washware and/or adjustment of internal mechanisms to support or hold down different items, and all of these processes may affect operational capacity particularly with rapid changes of categories of washware; the machine must be drained and cleaned at least once per day and more often when soil loadings within the mach
ine become excessive. Internal parts including filters, jets, spray arms, curtains, covers, doors, hold-downs, must be inspected daily and cleaned if necessary; operators must be fully trained in: general hygiene practice including personal hygiene, appropriate separation of clean from dirty areas and correct handling of clean washware, correct use of the machine including correct start-up, daily cleaning, loading, emergency stop and chemical handling procedures and awareness of all the above hazards; machines must be installed correctly by qualified professionals in accordance with all local codes and regulations, and maintained regularly including during the warranty period by authorised technicians. Washtech does not warrant or represent that this list represents all matters which a customer should take into account but has listed these matters by way of illustration only and a customer should rely on its own investigations and due diligence and its own skill and judgment (or that of its own advisors and contractors) and not that of Washtech as to the use, installation and fitness for purpose of the goods for the customer.