DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions, unless expressly stated to the contrary, the following expressions shall have the following meanings:
Business Day - A day other than a Saturday or Sunday or public holiday in England and Wales;
Confidential - Of a party shall mean any information relating to a party’s (or any of its associated companies’) business, which is not in the public domain or already in the possession of the receiving party;
Contract - Each agreement for the sale of Products, as referred to in clause 2;
Customer - The person purchasing the Products under the Contract;
Customer Branding - any branding or design provided by the Customer to SMI in connection with the Contract including without limitation any logos provided by the Customer;
Customer Materials - any materials provided by the Customer to SMI in connection with the Contract including without limitation any Customer Branding;
Delivery - has the meaning given to that term in clause 4.1;
Insolvency Event - any event referred to in clause 10.1.2;
Intellectual Property Rights - means all patents, know-how, copyrights, trade or service marks, design rights, and all other intellectual property rights of any kind;
Price Proposal - has the meaning given to that term in clause 2.1;
Products - the products described in the Contract; and
SMI - SMI Int Group Limited (registered no 07644080) whose registered office is at Corporate House, Kings Road Industrial Estate, Haslemere, Surrey GU27 2QH.
1.2 References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision.
1.3 The headings in these terms and conditions are for ease of reference only and shall not in any way affect their construction or interpretation.
1.4 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
1.5 References to any party shall include its personal representatives lawful successor in title and permitted, assigns.
1.6 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2. PRICE PROPOSALS
2.1 On receipt of a request to purchase Products, SMI may submit to the Customer a price proposal for the sale of the requested Products (“Price Proposal”). The Customer must provide SMI with all information reasonably required in order to prepare the Price Proposal. SMI shall not be obliged to fulfil any request to purchase Products.
2.2 The Customer shall notify SMI if it accepts the Price Proposal. On receipt by SMI of such acceptance, a binding contract for the sale and purchase of the Products shall be entered into between the parties (“Contract”). SMI may amend or withdraw a Price Proposal at any time until it receives notice of the Customer’s acceptance.
2.3 These terms and conditions, together with the relevant Price Proposal and any others agreed in writing as applicable, shall apply to each Contract for the sale and purchase of the Products to the exclusion of any other terms and conditions (including without limitation any purchase terms and conditions of the Customer). In the event of an inconsistency or conflict between these terms and conditions and any other terms and conditions which the parties have agreed in writing are applicable, these terms and conditions shall prevail unless otherwise agreed by the parties in writing.
2.4 SMI may amend these terms and conditions from time to time.
3. PRICE AND PAYMENT
3.1 The price of the Products shall be as set out in the Price Proposal.
3.2 SMI reserves the right to increase the price prior to Delivery in its sole discretion.
3.3 The price and other sums payable shall be exclusive of any applicable VAT or other taxes and duties, which shall be payable in addition.
3.4 Unless otherwise stated in a Price Proposal, delivery charges shall be levied in addition
to the price.
3.5 Payment shall be due without any set off, withholding, deduction, abatement or counter-claim no later than 30 days from the end of the month stated on the invoice.
3.6 Not withstanding clause 3.5 or any other arrangements for provision of credit which SMI may have agreed with the Customer in respect of the Contract, the whole price of all Products bought or agreed to be bought by the Customer shall be immediately payable without demand upon the occurrence of an Insolvency Event.
3.7 In the event that any sums owed to a SMI under a Contract remains outstanding after the due date for payment, SMI shall be entitled to charge interest on the overdue amount at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
4. DELIVERY OF PRODUCTS
4.1 Delivery of the Products shall take place when they are received by or on behalf of the Customer at the Customer’s nominated delivery address (as agreed between the parties in writing) (“Delivery”).
4.2 Times for delivery or performance by SMI are estimates only and time shall not be of the essence.
4.3 Delivery may take place by way of instalments in such quantities as SMI may reasonably decide. Instalments shall be separate obligations and no breach in respect of one or more of them shall entitle the Customer to cancel any subsequent instalment or repudiate the Contract as a whole.
4.4 Not withstanding any other provision of the Contract, in the event of non-availability of any Products ordered, SMI may deliver a reasonable substitute. Substitution may affect the price payable by the Customer. SMI shall notify the Customer of any substitution and any resultant change in the price payable by the Customer.
4.5 SMI shall be deemed to have accepted Products 2 Business Days after Delivery. After acceptance the Customer shall not be entitled to reject Products which are not in accordance with the Contract.
5. RISK AND PROPERTY
5.1 Risk of loss or damage to the Products shall pass to the Customer at the time of Delivery of the Products.
5.2 SMI will still own the Products, regardless of Delivery, until the Customer has paid SMI in full for those Products and VAT thereon, and all other sums due from the Customer to SMI at that time. SMI may attribute money received from the Customer as being payment for any Products as SMI thinks fit, regardless of the circumstances.
5.3 Until such time as the title in the Products has passed to the Customer under Clause 5.2, the Customer shall:
5.3.1 hold the Products on a fiduciary basis as SMI’s bailee and shall store and mark it in such a way that it is readily identifiable as SMI’s property, and shall not mix it with any other goods or equipment;
5.3.2 not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Products; and
5.3.3 not dispose of or deal with the Products or any documents of title relating to it or any interest in it, except that the Customer may on its own account use the Products in the ordinary course of its business operations, provided that the Customer’s right to use the Products shall automatically cease if the Customer is subject to an Insolvency Event.
5.4 If any of the following occur:
5.4.1 payment becomes overdue;
the Customer is in breach of any of its obligations under a Contract or any other agreement between SMI and the Customer;
5.4.2 the Customer exercises any right to terminate a Contract or any other agreement between SMI and the Customer; or
5.4.3 if the Customer is subject to an Insolvency Event or SMI reasonably expects that the Customer will be subject to an Insolvency Event, then in any such case:
5.4.4 SMI may by written notice terminate the Customer’s right (if still subsisting) to use the Products; and/or
5.5.5 SMI shall be entitled upon demand to the immediate return of all the Products which remains in the ownership of SMI, and the Customer irrevocably authorises SMI to recover such Products and any documentation relating to it and for that purpose, to enter any place. The Customer shall take all reasonable steps to help SMI recover the Products. Recovery by SMI of the Products shall not of itself cancel the Customer’s liability to pay the whole or balance of the price for the Products or any other rights of SMI under the Contract.
6. QUALITY
6.1 SMI warrants that the Products will materially conform to the description of the Products in the Contract or otherwise provided in writing by SMI to the Customer.
6.2 If any of the Products do not conform to the warranty in clause 6.1 SMI will, at its option, repair or replace those Products or make, so far as is fair, a refund of all or a part of the price. If SMI complies with this obligation, it shall have no further liability in respect of, or arising from, such non-conformity.
6.3 Except as expressly stated in the Contract, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise relating to satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
7. CUSTOMER OBLIGATIONS
7.1 The Customer warrants that, in respect of any personal data (as defined in the Data Protection Act 2018) contained in any Customer Materials, it has obtained all authority and consents necessary to enable SMI to process such personal data in accordance with all applicable data protection legislation for the purposes of the Contract.
7.2 The Customer is responsible for using the Products in accordance with instructions supplied by SMI and/or the manufacturer of the Products and SMI shall not be responsible for any damage, loss or claims arising from any failure to comply with such instructions.
7.3 If the Customer becomes aware that any third party has made or is likely to make any claim in respect of any Products (including, without limitation, as to defects in them or rights infringed by them) it shall immediately inform SMI and shall afford to SMI reasonable assistance (including, without limitation, permitting SMI to have conduct of any proceedings) which SMI may reasonably require to enforce its rights and defend such claim.
7.4 Without prejudice to any duty of the Customer at common law, SMI shall be entitled to require the Customer to take such steps as SMI may reasonably require to mitigate or reduce any losses or claims that may arise in relation to the Contract.
8. CUSTOMER BRANDING AND INTELLECTUAL PROPERTY
8.1 If the Customer requires that the Products incorporate any Customer Branding, SMI shall provide the Customer with a sample of the Products incorporating such Customer Branding and the Customer shall notify SMI of its approval of such samples. The Customer’s approval shall not be unreasonably withheld or delayed and shall be irrevocable.
8.2 The Customer hereby grants SMI a non-exclusive royalty free right to use the Customer Materials for the purpose of providing the Products and as otherwise required by SMI to comply with its other obligations under the Contract. The Customer warrants that the use of Customer Materials by SMI shall not infringe the rights of any third party including without limitation any third party Intellectual Property Rights.
8.3 Except for any Intellectual Property Rights arising in the Customer Materials, all Intellectual Property Rights in the Products and their specification, design, packaging, labelling and other materials supplied with or in connection with any of the Products shall as between the parties remain at all times vested in SMI. No Intellectual Property Rights of SMI are transferred to the Customer and no licences to use any Intellectual Property Rights of SMI are granted to the Customer except as may be necessary for the usual use of the Products supplied.
8.4 The Customer shall not remove, obscure or otherwise alter or interfere with any of the logos, marks or branding appearing on any of the Products or their packaging.
9. INDEMNITY
The Customer hereby indemnifies and shall keep SMI indemnified against all sums suffered or incurred by SMI in respect of all and any demands, liabilities, expenses, claims (including but not limited to any settlements of claims whether before or after the issue of proceedings), judgment sums (including but not limited to sums arising from consent orders or judgments), damages, direct, indirect or consequential losses, costs (including but not limited to legal and other professional costs) suffered or incurred by SMI arising out of or in connection with any breach of any of the provisions of clause 7.1 or 8.2.
10. TERMINATION
10.1 Without affecting any other rights and remedies it might have, SMI shall be entitled to terminate the Contract and/or suspend its performance at any time without liability to the Customer by giving written notice to the Customer at any time if the Customer:
10.1.1 is in material breach of the Contract;
10.1.2 has any corporate action, application, order,proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the relevant party is incorporated, resident or carries on business; or
10.1.3 if any sums due from the Customer to SMI remain outstanding after the due date for payment.
10.2 Any termination however caused shall not affect any right or liabilities which have accrued prior to the time of termination and the continuance in force of any provision of the Contract which expressly or by implication is intended to come into or continue in force after termination.
11. LIMITATION OF LIABILITY
11.1 Subject to clause 11.5, SMI’s liability to the Customer however arising out of or in connection with a Contract and/or the sale of the Products shall be limited in respect of all claims in aggregate to a sum equal to the total sums paid (exclusive of VAT) by the Customer for the Products under the Contract giving rise to the claims.
11.2 Not withstanding any other provision of the Contract, but subject to clause 11.5, SMI shall have no liability however arising out of or in connection with the Contract and/or the sale of the Products for any:
11.2.1 direct or indirect loss of or damage to:
profit;
revenue;
business;
contract;
opportunities;
anticipated savings;
data;
goodwill;
reputation;
use;
11.2.2 indirect or consequential loss or damage; or
11.2.3 claim arising out of a claim against the Customer by a third party.
11.3 The parties agree that each of the sub-clauses in clause 11.2 and each of the sub-paragraphs 11.2.1(a) to 11.2.1(j) in sub-clause 11.2.1 constitute separate terms and the introductory wording of clause 11.2 shall be applied to each of them separately. If there is any claim or finding that any such individual sub-clause or sub-paragraph is unenforceable for any reason, such unenforceability shall not affect any other provision within clause 11.2 or otherwise.
11.4 The term “however arising” when used or referred to in clause 11 covers all causes and actions giving rise to the liability of SMI arising out of or in connection with the Contract and/or the Products including (i) whether arising by reason of any misrepresentation (whether made prior to and/or in the Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; or (iii) whether caused by any total or partial failure or delay in supply of SMI or defective Products.
11.5 The exclusions and limitations of liability contained in these terms and conditions and in the Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies SMI of the possibility of any greater loss or damage, but shall not apply to the extent prohibited or limited by law and, in particular, nothing in the Contract shall affect liability for death or personal injury caused by negligence or for fraudulent misrepresentation or other fraud.
11.6 SMI shall not be liable to the Customer for any claim unless made with reasonable details in writing to SMI without unreasonable delay and in any event no later than 3 months, or such longer period as may be reasonable in the circumstances, after the date the claimable event first came (or ought reasonably to have come) to the Customer’s notice.
12. CONFIDENTIALITY
Neither party shall without the prior written consent of the other party (during and after termination of any Contract) use (other than in the performance of this Contract) or disclose to any other person any Confidential Information of the other party, except that any obligations contained in this clause shall not prevent any disclosure of Confidential Information which is required by law, court order or any legal or regulatory authority, which is required to comply with the rules of any relevant stock exchange, or disclosure to a party’s professional advisors, acting in their capacity as such.
13. FORCE MAJEURE
SMI shall have the right to suspend delivery and/or cancel or reduce the volume of the Products to be supplied and shall not be liable in any way for loss, damage or expense arising directly or indirectly from this, or any other failure or delay in SMI’s performance of the Contract, to the extent that this has been caused by any circumstance beyond SMI’s reasonable control, including war (or other action of military forces), terrorism, riot, civil commotion, sabotage, vandalism, accident, breakdown or damage to machinery or equipment, acts of God, fire, flood, severe weather conditions, extreme traffic congestion, strike, lock-out or other industrial disputes (whether or not involving employees of SMI) or failure or delays by SMI’s suppliers.
14. ENTIRE AGREEMENT
14.1 The Contract constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or understanding between the parties with the respect to the arrangement contemplated by or referred to in the Contract.
14.2 The Customer acknowledges that, in entering into each Contract, it does not rely on, and shall have no remedy in respect of, any representation, whether negligent or not, of any person (whether party to the Contract or not) which is not expressly set out in the Contract, and the only remedy available to it for breach of any statement, representation or other term that is expressly set out in the Contract shall be for breach of contract.
14.3 Nothing in this clause 14 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
15. GENERAL
15.1 SMI may assign, novate, charge or hold on trust for another any of its interest under the Contract in whole or in part or sub-contract all or any of its obligations under the Contract. The Customer shall not be entitled to assign, novate, charge or hold on trust for another any of its interest under the Contract in whole or in part or sub-contract all or any of its obligations under the Contract without the prior written consent of SMI (such consent not to be unreasonably withheld or delayed).
15.2 Subject to clause 2.2, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.3 Save as expressly provided in these terms and conditions, the rights and remedies provided by Contract are cumulative and (subject as otherwise provided in these terms and conditions) are not exclusive of any right or remedy provided by law. No exercise by a party of any one right or remedy shall (save unless expressly provided otherwise) operate so as to hinder or prevent the exercise by it of any other right or remedy.
15.4 Any failure to exercise or delay by SMI in exercising a right or remedy arising in connection with the Contract or by law shall not constitute a waiver of such right or remedy or of any other rights or remedies. No waiver shall be effective unless in writing and signed by SMI or on its behalf by a duly authorised representative. A waiver of a right or remedy on one occasion shall not constitute a waiver of the same right or remedy in the future.
15.5 If any provision of these terms and conditions or the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions or the Contract and the remainder of the provision in question shall not be affected thereby.
15.6 Any notice given under the Contract shall be in writing, in English, and may be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to, the intended recipient’s address. The address of a party for service of notices is the address set out in the Contract or such other address as a party may designate by notice given in accordance with this clause
15.5 A notice is deemed to be received when left at the recipient’s address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting. If such deemed receipt is not within business hours (being between 9.00 am and 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to be received when business hours next commence.
15.7 No provision of a Contract shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16. GOVERNING LAW AND JURISDICTION
These terms and conditions and the Contract are governed by and shall be construed in accordance with English law. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales.