A repair organisation diagnosed a fault in a piece of machinery and supplied and fitted a replacement part. After a short period (22 hours of usage, spread over a couple of weeks) the replacement part failed and was replaced again by the same repair organisation. The organisation has sent an invoice to me for replacing the failed replacement: half their labour costs and half the return shipping of the failed part (to the USA). I'm "disinclined" to pay, but what's the legislation that applies?
Before getting onto the Sale of Goods Act, is this machine for business or private use - as there are differing SoGA rules for each. I.E.. Business to Business or Retailer to Customer.
Then in most cases none of consumer law applies. In commercial contracts what matters is the contract itself and any terms and conditions mentioned in it. A commercial contract can exclude the implied terms sections of the Sale of Goods act and would normally do so. As a first step you need to get a copy of your suppliers T's&C's and read them.
It isn't an exclusion clause. It is perfectly simple (and almost universal) to exclude the SoGA implied terms in a contract and replace them with explicit terms.
So for example in a consumer contract there is an implied term that says that goods failing within 6 months of purchase are assumed to have been non compliant at the time of purchase and repair costs fall to the seller. In a B2B contract that can be replaced by an explicit term which says failures within a week are down to the supplier and after that the purchaser pays. If the purchaser is daft enough to contract on those terms that is his problem. You can still argue it is an unfair term but your position is much weaker.
First thing to check, also to make sure there was a SoGA exclusion clause.
Of course not - but make sure you are fighting from solid ground.
There is a game to supplant fitness for purpose and satisfactory purpose with specific terms that exclude the "interstices" but you cannot simply exclude the b2b provisions of f for p and s q without running directly into UCTA.
If a spare part fails within 24hrs there are two choices - the part which was replaced failed for a reason caused by something else or the part was faulty. I'd be cautious of the former, but pretty bullish about the latter, irrespective of any weasel words.
I am a commercial litigation lawyer for what it is worth, but SOGA stuff is not my forte.
You can, it is common for example in high risk projects where it is used to transfer risk from the buyer to the seller. As long as both agree, that is perfectly reasonable. The whole purpose of the SoGA built in ability to allow it to be excluded in commercial contracts is that two informed commercial entities should not be barred by law from entering into a contract they both want. Excluding the SoGA implied terms of course has no effect upon the normal provisions of contract law. All it means is that the OP must read the terms of the supplier because he certainly can't rely upon the consumer parts of the SoGA and probably not the implied terms.
Someone mentioned looking at the seller's T&Cs. But its not automatic that you're bound by them, they only apply if you were told them, have seen them, or were given the oportnuity to see them, AND they're lawful, which not all are, and you accepted them in some way - which often happens without someone realising.
Umm yes, but you have to avoid the UCTA stuff all the same. Just the tests are lighter.
Not necessarily, it depends on the host of factors set out in the schedule. Two big organisations with lawyers negotiating contracts on both sides, yes, almost certainly forget it. A set of standard term t&cs that purport to validate non-performance, with a good degree of difference in bargaining power, and where the seller could have insured much more easily than the buyer, not so.
in commercial contracts is
Overly simplistic, but yes there is an undercurrent of that. If this was Siemens and Bechtel arguing over a contract negotiated between A&O and CC, my answer would have been different. But it doesn't sound like that to me.
al provisions of contract
Thanks I'd forgotten how to suck that egg.
He certainly can't rely on the consumer parts if this was in business, but the second conclusion is far too wimpy - I'd advise you not to become a litigator!
Anyway, he has the massive upper hand, as they have fitted the part and he had the unpaid invoice in his hand. Ball is in their court. A few letters outlining his dissatisfaction and stating the original was not f for p or of sq and eventually maybe it will reach an in house lawyer with wimpy tendencies.
I asked them why they thought the cost was down to me; in the reply, pasted below, it seems that they're trying gentle blackmail:
__________ At we are bound by the terms of Warranties that come with the parts we purchase. By default these Warranties WITH THEIR SHORTCOMINGS we pass on to our customers. The Warranty with the covers replacement of the item only. It specifically excludes carriage costs, any labour fitting costs ALSO any consequential costs such as loss of service
I understand your viewpoint, that through no fault of your own you have lost the use of your and are being asked to pay approx £ for the replacement of a part that had failed
Please understand that have a viewpoint as well. We have had to identify a fault, return the item, get a replacement and fit it. The full total costs to in time, carriage etc is in excess of £. We also are victims, in that the faulty was not anything we could forecast or prepare for in any way.
kindly offered to split the costs with you, but I would emphasize this has cost MORE than the cost to you. If you still feel aggrieved and do not wish to pay the Invoice then so be it I will not chase you and will write it off as a "Bad Debt" However any future request for emergency breakdown service would have to be carefully considered by . ______________
That is a common contract condition for commercial contracts. Some companies sell additional "warranty packs" to customers wanting more. Unlike consumer contracts in any commercial contract you are trading risk. How much you trade depends upon your company. If you have in-house engineers and no urgency for repair all you might want is the replacement part sent buy the cheapest means. If the machine is crucial to your work and you have no one who can fix it you will want a maintenance team on site with spares within hours. One size won't fit all and different levels of service have different price tags attached. You are free to negotiate what suits you with your supplier.
How important is the service you get and how much do you value the supplier?
He isn't "blackmailing" you but pointing out that you (company not individual) signed the contract and accepted the conditions. If you are now reneging on that agreement he is saying (quite reasonably) that you can't expect them to rush to your help next time you need them.
You have to look at the specific terms they are saying apply, and whether in fact they do apply. Otherwise it is just hot air and assumption. No reader of this thread has enough information to give any meaningful advice either way.
We don't know that you signed or otherwise agreed a contract which incorporated their t&c at all, or that their t&c contains terms which are effective in doing what they say they do, or in turn whether those are reasonable in UCTA (b2b) terms in the light of all the usual factors that have been to be considered.
As for the mild threat of not supplying future services, there is simply a commercial judgment to make as to whether it is a bluff, and whether paying what they are asking to secure future service is more important than the cash is to your company.
I do not know what the amounts are, but there is an obvious distinction between their labour charges and the shipping charges. Maybe there is a compromise to be reached where you pay the hard costs of shipping, and they swallow their soft costs of the labour charges? Obviously that might not be sensible if the part weighed a few tons but took minutes to swap over...
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