Defects shall be notified as soon as they are discovered but in any event:-
In the cases of “wear parts” including nozzles, brushes, motor brushes, spark plugs, belts, hoses, wheels, seals, electrodes, fluids, plastic couplings, filters and plastic parts, not later than 28 days after the delivery of the goods to the end user, or (in the case of fixed installations of goods), their delivery, installation and commissioning for the end user.
In the case of items of the goods other than those listed in clause 10.1.1 hereof no later than 12 months after the delivery of the goods to the end user or (in the case of fixed installation of goods), the delivery, installation and commissioning of the goods for their end user or in the case of multishift operation of the goods (meaning operation of more than 8 hours in each 24 hour period) not later than 6 months after such delivery or commissioning.
The Seller shall make good either by repair or replacement or renewal at its option defects which under proper storage and use appear in the goods or work within the time limits set out in Sub-Clause 10.1 above and which arise solely from faulty material or workmanship provided that:-
Such defects have not been caused by misuse, neglect, accident, improper storage installation or handling, frost damage or by repair or alteration not effected by the Seller (including the attachment or connection to the goods of any devices or accessories other than those distributed or officially recommended by the Seller) or non-compliance with the Seller’s operators’ instructions manual or the use in the operation of the goods of incorrect electrical supply voltage, contaminated water supply or unsuitable chemicals.
The Buyer shall pay to the Seller the reasonable cost (as certified by the Seller) of any examination of such goods as a result of which the Seller shall not be liable under the terms hereof.
In the event that the Buyer shall agree with the Seller that the Buyer will provide the labour necessary to carry out such repair replacement or renewal, then the Buyer shall be entitled to be paid for the said labour at a rate not exceeding the Seller’s current labour rate.
The Seller’s liability under Clause 10.2 hereof shall be in lieu of any warranties and conditions whether express or implied by statute common law or otherwise however, which warranties and conditions are hereby expressly excluded.
WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, NOTHING HEREIN CONTAINED SHALL OPERATE TO EXCLUDE ANY WARRANTY OR CONDITION IMPLIED BY STATUTE IN THE EVENT OF THE BUYER DEALING AS A “CONSUMER” AS DEFINED BY SECTION 12 OF THE UNFAIR CONTRACT TERMS ACT 1977. IN SUCH A CASE THE BUYER’S STATUTORY RIGHTS ARE UNAFFECTED BY THESE TERMS AND CONDITIONS.
Save as aforesaid and save in respect of death or personal injury resulting from the negligence of the Seller its Servants or Agents, the Seller shall not be liable for any claim or claims for direct or indirect consequential or incidental injury loss or damage made by the Buyer against the Seller whether in contract or tort (including negligence on the part of the Seller its Servants or Agents) arising out of or in connection with any defect in the goods or work or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the contract or breach of a fundamental term thereof) of the Seller its Servants or Agents in the performance of the contract.
The Seller’s obligations contained in this Clause shall apply only to the buyer but the Buyer shall not be prevented from having recourse to them solely by reason of the Buyer selling the goods in the normal course of its business to a third party. Application for transfer to subsequent purchasers of the goods of the benefit of this warranty for its unexpired period will be considered by the Seller upon submission of a written request.
The Buyer accepts as reasonable that the Seller’s total liability for any goods or work which are defective shall be as set out in these conditions: in fixing that limit the Seller has had regard to the contract price of the goods, the nature of the goods, the use they will receive and the resources available to each party including servicing facilities and insurance cover, to meet any liability.