TERMS AND CONDITIONS
1. DEFINITIONS AND GENERAL
1.1 In these Conditions:
The "Buyer" means the immediate purchaser of the Goods from the Seller.
The "Contract" means the relevant Contract to which these Conditions apply.
The "Goods" means the Goods (including any instalment of the Goods or any part(s) of them) which the Seller is to supply in
accordance with these Conditions.
The "Seller" means Smart R Distribution Limited. The "Stated Price" means the agreed price for the Goods stated in a Contract of
Sale to which these Conditions apply.
"Writing" includes letter, e-mail, telex, cable, facsimile transmission and other comparable means of communication.
1.2 The uniform laws on international sales shall not apply.
2. FORMATION OF CONTRACT
2.1 Quotations are not binding on the Seller who may refuse to accept any order and may withdraw it before acceptance of order. An
order shall be deemed to be accepted only when the Seller has sent a written acceptance or has commenced work upon or despatched or
otherwise appropriated items for performance of the order.
2.2 Acceptance will be subject to these Conditions and the express terms of the quotation and no qualification or condition
contained in any request for quotation, order or other communication from the Buyer shall form any term of the Contract unless expressly
accepted in writing by a Director of the Seller.
2.3 Unless otherwise stated therein a quotation will lapse in any event thirty days after its date of issue.
2.4 Orders are accepted subject to the credit status of the Buyer being satisfactory to the Seller which may cancel the Contract if
its credit enquiries at any time prove unsatisfactory to it.
2.5 Acceptance of a quotation must be accompanied by all information necessary for the Seller to proceed with the Contract. If work
is delayed or additional costs incurred through lack of such information or changes in information, the Seller may amend the Contract
price to cover the additional costs and/or extend the delivery date.
2.6 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the
Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of,
any such representations which are not so confirmed.
3. PRICE
Unless otherwise agreed in writing the Stated Price is ex-Seller's works and is expressed in pounds sterling net and is
exclusive of value added tax and any and all other taxes, levies, import duties and charges of a similar nature, and all carriage,
insurance, packing, freight and installation charges. Where such price is based upon a currency other than pounds sterling any
fluctuations in the exchange rate of such currency against pounds sterling between the date of order and the date of the Seller's
invoice which adversely affect the Seller shall be passed on to the Buyer who shall pay the same in accordance with clause 4 hereof.
4. TERMS AND PAYMENT
4.1 The Seller may invoice the Buyer for the price of the Goods on, or at any time after their delivery, unless they are to be
collected by the Buyer, or the Buyer wrongfully fails to take delivery of them, in which event the Seller may invoice the Buyer for the
price at any time after the Seller has notified the Buyer that they are ready for collection, or (as the case may be) has tendered
delivery of them.
4.2 The Buyer shall make payment by the end of the month following the month appearing on the invoice, notwithstanding that delivery
may not have taken place, or property in the Goods has not passed to the Buyer. Payment is deemed to be made when the Seller's bank
account is credited with the amount due with cleared funds. The Seller may invoice and apply for payment of each shipment separately.
4.3 The Buyer shall make all payments hereunder in full without deduction, set-off or counterclaim whatsoever from, or against the
same, except as required by law and regardless of any delays in delivery or performance or any corrections or adjustments that may be
necessary to the Goods.
4.4 The time for performance of the Buyer's obligations (whether as to payment or otherwise) shall be of the essence so that failure
to perform shall entitle the Seller at his option, to treat the Contract as repudiated by the Buyer or to delay shipment or otherwise
withhold performance (in which event the Seller's time for performance shall be extended accordingly).
In the case of delivery by instalments, failure to perform in respect of one shipment shall entitle the Seller, at its option,
to cancel or delay or withhold performance in respect of that shipment or other shipments, or to treat the whole Contract as repudiated
by the Buyer.
4.5 The Buyer may cancel the Contract in whole (but not in part unless the Seller so agrees in writing) by written notice to the
Seller accompanied by payment of a cancellation charge computed as follows:-
More than 90 days before agreed delivery date 10% of price
90 days or less but greater than 60 days before agreed delivery date25% of price
60 days or less but greater than 30 days before agreed delivery date50% of price
30 days or less before agreed delivery date100% of price
Provided that if the Goods have been described as "specials" on the quotation or the written confirmation of the order the
cancellation charge shall be 100% of price regardless of when written notification of cancellation is received and accepted by the
Seller.
4.6 If any monies payable by the Buyer to the Seller are not paid when due or if the Buyer is in breach of any of its obligations
(whether under the Contract or any other agreement with the Seller) or becomes bankrupt, enters into liquidation, has an administration
order made in respect of it or suffers the appointment of a receiver to all or any of its assets, the Buyer shall immediately pay to the
Seller all monies payable by the Buyer under the Contract or any other Agreement with the Seller (whether or not then otherwise due for
payment) and without prejudice to any other remedy.
(a) The Seller shall have the following rights in respect of the Contract and every other Agreement with the Buyer:
(i) to suspend or cancel the delivery of any further Goods and any other performance by the Seller (and if suspended the
Seller's time for performance shall be extended accordingly).
(ii) to terminate all or any part of the Contract and any unexecuted Contract with the Buyer.
(b) The Buyer shall pay to the Seller by way of full indemnity all costs of any nature incurred by the Seller arising from
the breach by the Buyer (including, but not limited to, all legal costs on a full indemnity basis).
4.7 The Buyer shall pay interest (after as well as before judgement) on any monies payable by the Buyer to the Seller which are not
paid when due at an annual rate of four percentage points above the base rate of Lloyds TSB Bank PLC from time to time compounded on a
day-to-day basis calculated from the date of due payment until the date of actual payment.
4.8 The Buyer shall indemnify the Seller (after as well as before judgement and on as many occasions as necessary to indemnify fully
the Seller) against any loss or expense which the Seller may suffer in the event of any delay in payment or other breach of contract by
reason of any change in currency exchange rates between the date payment fell due and the date payment is actually received by the
Seller and no proof or evidence of any actual loss shall be required by the Buyer.
5. VARIATIONS IN PRICE
In the event of variation or suspension of work due to the Buyer's instructions, the Seller by written notice to the Buyer may
increase the price, by such an amount as it reasonably considers will fairly compensate for additional cost thereby incurred by it. The
Seller, by notice to the Buyer at any time before delivery, may increase the price of the Goods to reflect any increase in the cost to
the Seller which is due to any factor beyond its control (such as, without limitation, any foreign exchange fluctuation, currency
regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacturer), any change in
delivery dates, quantities or specifications of the Goods which is requested by the Buyer, or any delay caused by any instructions of
the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
6. DELIVERY
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has
notified the Buyer that they are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller
delivering them to that place.
6.2 Whilst every effort will be made to adhere to any agreed shipment dates, such dates are not guaranteed and the Seller shall not
be liable for any expense, loss or damage arising directly from any delay in shipment or delivery however caused. Late delivery shall
not be grounds for rejecting Goods or terminating the Contract.
6.3 The Buyer shall accept delivery of the Goods by instalments if the Seller so requests.
6.4 If the Buyer having been notified the Goods are ready for despatch or (as the case may be) collection, fails to accept delivery
or make collection, or if the delivery programme is varied at the Buyer's request or if no shipping instructions are provided by the
Buyer, the Seller may invoice the Buyer for the Stated Price of those Goods (which the Buyer shall pay as though those Goods had been
despatched or collected on the date of notification) and may charge the Buyer for storage and insurance and all other expenses incurred
by it in respect of those goods and risk in those Goods shall be treated as having passed to the Buyer from the date of the Seller's
notification.
6.5 If the Buyer fails to accept delivery fourteen days after being notified that the Goods are ready for despatch, the Seller may,
at its option and in addition to the above rights, treat this as a cancellation of the order with effect from the date the Seller
notified the Buyer that the Goods were ready for despatch. In these circumstances Clause 4.4 shall apply.
6.6 Where the Contract provides for delivery by instalments delays in delivery or the non-delivery of any instalment shall not
entitle the Buyer to terminate the Contract or reject any other instalment. Each delivery made by the Seller shall be deemed to be a
separate Contract.
6.7 The Buyer shall in good time for delivery obtain any necessary import or export licences in respect of the Goods.
7. FORCE MAJEURE
If the Seller's ability to perform its obligations hereunder is limited, delayed or prevented in whole or in part by any cause
not reasonably within its control, including without limitation, war, hostilities, riots, civil commotion, strike, lock-out, sit-in,
trade dispute, flood, accident to plant or machinery, shortage of any material, labour, electricity or other supply or by any law, rule,
regulation, order or other action of any public authority, transportation delays or the refusal or delay in granting any necessary
export or import licence, the Seller shall be excused, discharged and released without penalty from performance of the Contract to the
extent that such performance is so limited, delayed or prevented. If the Goods or any part thereof has been delivered, the Buyer shall
pay to the Seller a proportion of the stated price appropriate to the goods which have been delivered and the amount (if any) of the
installation work carried out. If no equipment has been delivered and the Contract becomes impossible to perform for reasons not
reasonably within the Seller's control, the Seller's liability shall be limited to repayment to the Buyer of any relevant sums paid by
him to the Seller.
8. RISK
8.1 Risk of damage to, or loss of the Goods, shall pass to the Buyer:
(a) In the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods
are available for collection, or
(b) In the case of Goods to be delivered elsewhere, at the time of delivery or, if the Buyer wrongfully fails to take delivery
of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2 The Seller shall not be obliged to give the notice required by Section 32(3) of the Sale of Goods Act 1979, or any notice of
intended despatch.
9. PROPERTY
9.1 Notwithstanding that the Buyer obtains possession of the Goods, both the legal and equitable title therein will remain in the
Seller until the Seller has received payment from the Buyer of the stated price in full with all value added tax thereon and all other
monies that may be or become payable from the Buyer to the Seller in relation thereto.
Until such time the Buyer shall hold such goods as Bailee in a judiciary capacity for the Seller and shall store the goods in
such a way as to show clearly that they are the property of the Seller and the Seller shall be entitled to require the Buyer to deliver
such goods or any of them to it on demand, and if the Buyer fails to do so forthwith, to enter the Buyer's premises for the purpose of
collecting them (to include, without prejudice to the generality of the foregoing, the dismantling of any item into which such goods
have been incorporated) and the Buyer shall be responsible for all the Seller's costs and expenses in connection with so doing, or in
relation to any other goods, whether the subject of this Contract or any other Contract for which payment has not been made.
9.2 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which
remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any
other right or remedy of the Seller) forthwith become due and payable.
9.3 The Buyer may however, subject to sub-clause 10.4 below, use or sell such goods by way of bona fide sale in the ordinary course
of its business on its standard terms and conditions by way of sale as principal (not as agent) but that sale will constitute a sale by
the Buyer of the Seller's property and accordingly the Buyer will account to the Seller for the proceeds of Sale or otherwise of the
Goods, whether tangible or intangible, including insurance proceeds, up to the total amount outstanding in respect of such Goods and
pending such accounting will keep all such proceeds separate from any monies or property or the Buyer and third parties, and in the case
of tangible proceeds, properly stored, protected and insured, and hold the same on trust for the Seller.
9.4 In any event, the Seller (without prejudice to any other rights or remedies available to it), may without notice terminate all
or any part of the Contract or suspend or cancel deliveries there under and shall have a general lien on all the Buyer's property then
in the Seller's possession (whether as consignee or otherwise) in respect of any sums which may be owing by the Buyer to the Seller on
any account whatsoever and, on the expiration of 14 days notice, the Seller shall be entitled to dispose of the same and apply the
proceeds towards satisfaction of such sums.
9.5 The Seller shall be entitled to apply payments received from the Buyer in satisfaction of whichever invoice or part thereof as
the Seller shall in its absolute discretion decide and shall be entitled to vary such application as many times as it shall desire until
such time as all sums owing by the Buyer to the Seller have been paid.
10. GUARANTEE
10.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time
of delivery and will be free from defects in material or workmanship, for a period of 12 months from the date of delivery. The Seller's
liability for breach of warranty shall be limited solely to replacing or repairing without charge, the defective goods or part thereof.
10.2 The above warranty is given by the Seller subject to the following conditions:
(a) The Buyer shall have notified the Seller of the defect(s) in writing within seven days of the relevant defect becoming apparent.
(b) If requested by the Seller, the Buyer shall have returned such defective Goods or part thereof suitably packaged and at the Buyer's
risk describing the circumstances in which such Goods or part thereof became defective.
(c) Such defect shall have been proved by the Buyer to be attributable to the Seller and to have arisen solely from faulty design of
materials or workmanship.
(d) The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification
supplied by the Buyer.
(e) The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal
working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the
Goods without the Seller's approval.
(f) The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer
shall be entitled only to the benefit of any such warranty or guarantee, as is given by the manufacturer to the Seller.
(g) The Buyer has performed its obligations hereunder.
(h) Before returning the Goods to the Seller, the Buyer shall obtain from the Seller a returns authorisation number, which shall be
quoted when the Goods are returned. Failure to return the Goods within one month of being advised of a returns authorisation number
shall mean that relevant payment for the Goods is due in full.
10.3 Subject as expressly provided in these conditions and except where the Goods are sold under a consumer sale (as defined by the
Sale of Goods Act 1979) all warranties, conditions or other terms implied by Statute or Common Law are excluded to the fullest extent
permitted by Law.
10.4 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are
not affected by these conditions.
10.5 The guarantee shall apply only to the Buyer.
10.6 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by
reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of
the Contract, for any consequential loss or damage (whether for loss or profit or otherwise), costs, expenses, or other claims for
consequential compensation whatsoever and whether caused by the negligence of the Seller its employees or agents or otherwise which
arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these
conditions.
11. COMPUTER PROGRAMMES
Where the Goods include a computer programme, the Buyer agrees not to copy or disclose or alter the programme without the prior
written consent of the Seller and will in all other respects comply with the terms of any licence granted to the Buyer which relate to
the use of such computer programmes.
12. PRODUCT LIABILITY
12.1 The Buyer shall use all reasonable endeavours to ensure that the Goods are operated in accordance with the instruction manuals
supplied with the Goods and shall provide all relevant personnel with necessary training in respect of the Goods.
12.2 The Buyer shall ensure that all warnings displayed on the Goods or the packaging, at the time of delivery, shall not at any time
be removed, defaced or otherwise obscured and further the Buyer shall contractually pass such obligation to any third party recipient of
the Goods.
12.3 The Buyer shall indemnify the Seller against any loss suffered as a result of the Buyer being in breach of any part of this
term.
13. RESPONSIBILITY
The Seller shall not be liable to the Buyer, or any person claiming through the Buyer, for damage to any of the Buyer's property
in the possession of the Seller (whether as consignee or otherwise) or for any injury caused to any person by such property by reason of
any cause beyond the reasonable control of the Seller.
14. CONFIDENTIALITY
The Buyer shall not at any time disclose or (save for operation of the Goods) use any confidential information or knowledge as
to methods of manufacture, plans, drawings, price lists, documents or other information relating to the Goods or the Seller.
15. DELEGATION
The Seller may delegate his performance under the Contract and may assign any of its rights or benefits there under.
16. NOTICES
Any notice hereunder shall be in writing and shall be effectively given if delivered or sent to the office of the addressee
normally used for communications relating to the Agreement or last known to the Sender. Notices sent by inland post shall be deemed
served at noon on the day following the date of posting and if sent by overseas mail shall be deemed served at noon on the 5th day
following the day of posting and any notice sent by telex or facsimile transmission shall be deemed served 12 hours after the time of
transmission but, if under this condition a notice would be deemed served on a day which is a Saturday, Sunday or Public Holiday in the
place of receipt, it shall be deemed served on the next following day not being such a Saturday, Sunday or Public Holiday.
17. INTERPRETATION
All contracts to which these conditions apply shall be governed by and construed in accordance with English law and the Buyer
irrevocably submits to the non-exclusive jurisdiction of the English courts.
