“We, us, our, Seller” means Smith & Allan Ltd a private limited company registered in England & Wales with Company Registration number 11082767 and whose Registered Office is at Valley Street North, Darlington DL1 1QE
“Buyer” means the person who buys or agrees to buy the goods or services from the Seller
“Business Day” means a day other than a Saturday, Sunday or Public Holiday in England, when banks in London are open for business
“Business Hours” means 8 a.m. to 5 p.m. on any Business Day
“Conditions” means the terms and conditions of the provision of goods or services to the Buyer as set out herein or as amended from time to time under the provisions of clause 5 herein
“Contract” means the contract between the Seller and the Buyer
“Delivery Location” has the meaning given in clause 8.3. herein
“Order” means the Buyer’s order for the Goods or the Buyer’s written acceptance of the Seller’s Quotation or the Buyer’s acceptance of the Seller’s Quotation or the Buyer’s purchase order.
Basis of sale
2. These Conditions shall apply to all contracts for the sale of goods and supply of services by the Seller to the Buyer to the exclusion of any and all other terms and conditions including for the avoidance of doubt any terms or conditions which the Buyer may purport to consider relevant.
3. Any order for goods or services which shall be deemed to be an offer by the Buyer to purchase the goods or services and shall be subject to the Seller’s acceptance in writing.
4. A quotation for Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from the date of issue. To create a formal contract the Buyer must then offer to buy the goods at the quotation price and the Seller must accept that offer in writing.
5. Any variation to any of these conditions shall not be applicable unless agreed in writing by the Seller
6. Specifications and quality
The specification, technical data, weights and instructions are provided for general information only and do not form part of the contract for the supply of goods and services and accordingly are not binding upon the Seller.
Unless otherwise agreed the price quoted will be the price in effect at the time of shipment and shall be based on delivery from the Seller’s premises. All prices are calculated in sterling and are quoted exclusive of VAT. Any additional costs of transportation and any other tax or duties payable in respect of the goods sold shall be payable by the Buyer.
8.1. Where delivery by the Seller is agreed, the mode of transport shall be at the discretion of the Seller. In such event, no liability is accepted by the Seller in respect of any additional or unforeseen fees occurred in the transportation, or any delays in relation to delivery. Any alleged discrepancy in goods delivered must be advised to the Seller within 24 hours of receipt.
8.2. Each Delivery shall be accompanied by a delivery note that shows the date of the Order, contract number or all relevant Seller and Buyer details and reference numbers, the type and quality of the Goods, specific storage instructions (where appropriate) and if the Goods are being delivered in instalments the outstanding balance of Goods remaining to be delivered.
8.3. The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Seller notifies the Buyer that the Goods are ready for Delivery
8.4. Delivery is completed at the time of unloading the Goods at the Delivery Location
Risk in the goods shall be passed to the Buyer on delivery or collection from the Seller’s premises, whichever is the earlier. For the avoidance of doubt, title to the goods shall remain with the Seller until payment is received in full by the Seller.
10.1.Any inspection of the goods required by the Buyer shall take place at the Seller’s premises and unless written notice is delivered to the Seller by the Buyer within 24 hours of such inspection, the Buyer shall be deemed to have accepted the goods.
10.2. All goods made to the Buyer’s specification are deemed to have been inspected and approved and accepted by the Buyer prior to delivery.
All invoices are net, due and payable within 30 calendar days of the month end of the invoice.
12. In the event of late payment, the Seller reserves the right to charge interest at the rate of 8% over the current Bank of England base rate (which it is accepted by both Buyer and Seller represents the additional cost involved due to late payment), together with any further costs incurred by the Seller in respect of debt collection.
13. All payments should be made without deduction, abatement or set off.
14. Failure to pay on time shall entitle the Seller to suspend any future delivery of goods or provision of services.
15. In the event that payment is delayed or not received, the Seller reserves the right to assign the debt to a third party. For the avoidance of doubt, late payment interest shall continue to apply.
Title in the goods shall not pass to the Buyer until payment in full in cleared funds has been received by the Seller.
17.1. Until the property and the goods pass to the Buyer, the Buyer shall hold such goods on a fiduciary basis as fiduciary agent and bailee for the Seller.
17.2. The Buyer shall store the goods separately from all other goods in its possession, appropriately insured and marked in such a way that the goods are clearly identified as the Seller’s property.
17.3. Until Title has passed to the Buyer the Buyer shall immediately notify the Seller if it becomes subject to and of the events listed in clause 22 and shall give the Seller such information as the Seller may reasonably require from time to time relating to the Goods and the financial position of the Buyer.
18. On the understanding that the goods remain the property of the Seller, the Buyer may sell or use the goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer until the property and the goods passes from the Seller and the entire proceeds of any such sale of the goods shall be held in trust for the Seller and shall not be mixed with other money or paid to any overdrawn bank account and shall be at all material times identified as the Seller’s money.
19. Until such time as the title in the goods passes from the Seller to the Buyer, the Buyer shall upon request deliver up such of the goods as has not ceased to be in existence or resold. If the Buyer fails to do so upon the Seller’s reasonable request, the Seller may enter upon the premises owned by the Buyer where the goods are situated and repossess the goods.
20. The Buyer shall not pledge or in any way charge by way of security any of the goods which are the property of the Seller.
21. The Buyer shall at all times insure and keep insured the goods to the full price of the goods against all risks to the reasonable satisfaction of the Seller until the property in the goods passes from the Seller.
The Seller may terminate a contract for the sale of goods or services with immediate effect by giving written notice to the Buyer if:-
22.1. the Buyer commits a material breach of the term(s) of the Contract and (if such breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so.
22.2. the Buyer takes any steps or action in connection with its entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to solvent restructuring), obtains a moratorium, being wound up(whether voluntarily or by order of the court, unless for the purpose or a solvent restructuring), have a receiver appointed to any of its’ assets or ceasing to carry on business.
22.3. the Buyer suspends, threatens, ceases or threatens to cease to carry on all or a substantial part of its business
22.4. the Buyer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy.
22.5. at any time before the goods are delivered or before the service is provided.
23. In the event of a cancellation by the Buyer, a cancellation fee of 10% of the contracted price (which the Buyer acknowledges represents a reasonable pre-estimate of the loss by the Seller as a consequence of any cancellation) shall be payable on cancelled orders.
This contract shall be governed and construed in accordance with the law of England and Wales.
In the event of a dispute arising between the parties as to construction of the contract, such dispute shall be referred to a single arbitrator in the UK as agreed by the parties in writing or in default of such agreement, appointed by the President for the time being of the Law Society of England and Wales.
The seller does not exclude or limit its liability for negligence or negligent omission which causes injury or death, except to the extent permitted by law.
27. The Seller shall only be liable for any loss or damage suffered by the Buyer which is reasonably foreseeable as a consequence of a sale. In such event, the maximum liability of the Seller will be limited to the amount of the purchase price actually received. For the avoidance of doubt, the Seller excludes all liability on its part for loss of profits or other economic loss arising from a breach of contract.
In the event that the Buyer becomes insolvent or unable to pay its debts as they fall due or enters into any voluntary arrangement with its creditors, or ceases to carry on trade, or reasonable apprehends any such events, the Seller shall be entitled to cancel the contract and retrieve goods supplied.
The Buyer may not assign its rights under any contract of sale without the Seller’s prior written consent.
30. Contracts (Rights of Third Parties) Act 1999
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this contract is not intended to, and does not, give any person who is not a party to tit any right to enforce its any of its provisions.
If any provision of these terms and conditions is held by a competent authority to be invalid or unenforceable in whole or part the remainder of the provisions shall remain in full force and effect.
32. Force Majeure
The Seller neither shall be, nor shall be deemed to be, in breach of any contract, and shall not be liable, by reason of any delay on the part of the Seller or its agents in performing, any of its obligations, where the delay or failure is attributable to any cause beyond the Seller’s reasonable control.