10. Warranty and Liability
10.1 : Subject to the terms set out below and unless otherwise specified in writing, the Seller warrants that on delivery the Goods shall comply with the Seller’s specification for the Goods. The Seller reserves the right to make any changes to the specification of the Goods which :
10.1.1: Are required to conform with any applicable safety, performance or other statutory or regulatory requirements; and/or
10.1.2: Do not materially alter the quality or performance of the Goods, and the Buyer will not be entitled to reject the Goods, by reason of such changes.
10.2: Subject to the remainder of this Condition 10, if the Goods are proved to the reasonable satisfaction of the Seller not to comply with the warranty at Condition 10.1 due to defects in materials, workmanship or composition (other than a composition specified by the this it will have no further liability to the Buyer.
10.3: The Buyer agrees that it will, and that it will procure that its officers, employees, agents or sub-contractors will, only use or apply the Goods:
10.3.1: For the purposes and in the manner expressly set out in the Seller’s written instructions (including e-mail instructions) supplied by the Seller to the Buyer with, or in relation to, the Goods (including any applicable Material Safety Data Sheets), if any such instructions are supplied by the Seller to the Buyer (the Buyer acknowledging that the Seller shall not in any circumstances (except where required by law) be obliged to provide it with any such instructions); and
10.3.2: In accordance with any applicable BSI and ISO international standards published from time to time,
and the Buyer acknowledges and agrees that the Seller will not be liable under Conditions 10.1 or 10.2 if the Goods are used or applied in any way other than in accordance with this Condition 10.3.
10.4: The Seller will not be liable under Conditions 10.1 or 10.2 or under any other provision of these Conditions where:
10.4.1: Notice of the breach should have been but was not given to the Seller under Condition 11; or
10.4.2: The relevant defect was caused by damage in transit after delivery; or
10.4.3: The defect in the Goods arises from wilful damage or negligence of the
Buyer, its employees, agents or sub-contractors; or
10.4.4: The relevant defect was caused or exacerbated by the Buyer using or applying the Goods in any way other than in accordance with Condition 10.3 or by any other improper use, handling, alteration, maintenance, storage or failure to comply with instructions provided with, or given by the Seller (whether oral or in writing) in relation to the Goods (if any), by the Buyer, its officers, employees, agents or subcontractors; or
10.4.5: The Buyer makes further use of the relevant Goods after discovering the relevant breach; or
10.4.6: The Warranty Period has expired.
10.5: Any Goods which have been replaced will belong to the Seller and the Seller may require as a condition of any replacement or refund that the defective Goods are returned to the Seller. Any replacement Goods will be liable to replacement or refund under the terms specified in Conditions 10.1 to 10.4 (inclusive) for the unexpired portion of the original Warranty Period.
10.6 :If any Goods have been modified or subjected to any process of manufacture or adaption after delivery then the Buyer will be deemed to have accepted such Goods as being in all respects in accordance with the Contract.
10.7: Subject to Condition 10.11, the remedies set out in this Condition 10 will be the sole and exhaustive remedies of the Buyer in respect of any and all non-conformance of the
Goods with the Seller’s specification.
10.8: Unless otherwise agreed in writing by the Seller, the Seller does not warrant the fitness of the Goods for any particular purpose, even if that purpose is known to the Seller and no such warranty is to be implied from the name or description under which the Goods are sold, nor from any advice or recommendation given by the Seller, its employees, agents and/or sub-contractors. Any suggestion or representation concerning any possible use or application of the Goods made by the Seller in any sales or marketing literature or in any response to a specific enquiry is given in good faith, but it is entirely for the Buyer to satisfy themselves fully as to the suitability of the Goods for any particular purpose.
10.9: The Buyer will indemnify the Seller in respect of all liabilities, damages, injuries, actions, suits, claims, demands, costs, charges, expenses, direct losses, proceedings and legal costs and judgments which the Seller incurs or suffers as a consequence of any direct breach or negligent performance or failure in performance by the Buyer of the terms of the Contract or any acts or omissions of the Buyer in connection with the use or application of the Goods or otherwise.
10.10 : The Seller shall not be liable to the Buyer for any:
10.10.1: Loss of profit (direct or indirect); or
10.10.2: Loss of revenue, loss of production or loss of business (in each case whether direct or indirect); or
10.10.3: Loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct or indirect); or
10.10.4: Loss of anticipated saving or loss of margin (in each case whether direct or indirect); or
10.10.5: Liability of the Buyer to third parties (whether direct or indirect); or
10.10.6: Indirect, consequential or special loss, which arise out of or in connection with the Contract, whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, under statute or otherwise, howsoever caused including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of the Seller’s obligations under the Contract and/or where caused by a deliberate personal repudiatory breach by the Seller subject always to Condition 10.11.
10.11 : Nothing in these Conditions will operate to exclude or restrict one party’s liability (if any) to the other for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.