1.1 In these Conditions the following expressions shall have
the following meanings: "Our, Us, We" relates to E. H.Smith (Builders Merchants) Limited."You, Your" relates to
the person firm or corporation with whom We contract for the sale of the Goods or supply of the services. "the
Goods" means the products which are to be sold by Us and purchased by You under the Contract. "the Contract" means
any contract for the sale of the Goods or Supply of services by Us to You incorporating these Conditions and
arising from Our acceptance of Your order.
2 General
2.1 Any quotation or estimate
given by Us is an invitation to You to place an order which shall be an offer open to acceptance by Us and no
order placed in response to or any other acceptance of a quotation or estimate shall give rise to a contract
binding upon Us.
2.2 These Conditions are the only conditions upon which We transact business and shall be
incorporated in the Contract to the exclusion of all other terms and conditions including any terms or conditions
specified or referred to in any order placed by You. Any reference in any document forming part of or evidencing
the Contract (including any order design drawing specification or other similar document) to any of Your terms or
conditions of purchase or business shall not have the effect of incorporating any such terms or conditions into
the Contract. Provided only that any agreement you may sign in connection with an application for a store card via
Our authorised Service Provider shall automatically be incorporated into the Contract.
2.3 These Conditions
can only be varied with Our written agreement.
3 Prices
3.1 All prices are
exclusive of Value Added Tax which will be charged at the rate applicable at the relevant tax point.
3.2
Prices in any quotations, estimates, acknowledgements of orders or other documents issued prior to despatch of the
Goods are not binding upon Us unless the price was stated to be fixed in the Contract and You have complied in all
respects with any provisions relating to such fixed price. The price charged shall be the price ruling at the date
of despatch of the Goods which We may increase to reflect any increase in the cost to Us which is due to any
factor beyond Our control.
3.3 We reserve the right to charge for any packaging materials (including
pallets) that We consider are necessary for the delivery of the Goods.
3.4 Where We agree to take back into
stock Goods already delivered to You, We reserve the right to impose a handling charge which You agree is a
genuine pre-estimate of Our expenses. This charge shall be up to 15% of the value of the Goods concerned when You
deliver them back to Our depot, and up to 25% of the value of the Goods concerned when We arrange
collection.
4 Delivery and Passing of Risk
4.1 The Goods shall be delivered to You
at the place specified in the Contract or as subsequently agreed between us. If no place for delivery is specified
or agreed, delivery shall take place at Our premises immediately prior to loading for despatch to You.
4.2
The Goods are at Your risk from the time they are loaded on to the vehicle for despatch to You whether that
vehicle is Ours, Yours or another's.
4.3 We are not bound by any delivery date or time put forward by You
at any time and any delivery date or time stated by Us at any time whether prior to or during the Contract and
whether in writing or otherwise is an estimate only and shall not be binding. Time of delivery shall not be of the
essence.
4.4 If We deliver to You or to a place agreed with You, You must ensure that there is adequate
labour and facilities for unloading the Goods safely and promptly and within a reasonable time and that all
approach roads and access points are suitable. If you do not do so You must reimburse Us for any charges, costs or
expenses We incur as a result.
4.5 If We deliver the Goods to You on Our own or a third party's transport,
You must indemnify Us against any additional costs claims or proceedings arising out of any delay caused by lack
of suitable access to or egress from the premises, facilities for off-loading, signing-off of delivery notes or
any other cause whatsoever arising from Your or Your employees' default or negligence.
4.6 Where delivery
is effected on a third party's transport We shall not be liable for damage occasioned by any negligent act or
omission of that third party, its servants or agents, provided that We have exercised reasonable care in selecting
that third party.
5 Inspection
5.1 Where We have arranged delivery or delivered
directly You must inspect the Goods immediately upon their arrival at the destination to which they are despatched
under the Contract and check: (a) whether the Goods have been damaged in transit; (b) that the Goods are those and
in the quantity specified in Your order or stated on Our delivery note.
5.2 Any discrepancy between the
Goods delivered and those described in Our Delivery Note or specified in Your order and any damage to the Goods in
transit must be notified to Us in writing within three working days of Your receipt of the Goods.
5.3 In
the case of non-delivery of the Goods You must notify Us in writing within three working days of Your receipt of
Our delivery note. No claim in respect of non-delivery or damage in transit will be considered by Us unless You
comply with the provisions of this Condition.
5.4 Where You collect or arrange collection or delivery of
the Goods, We shall accept no claims that the Goods are not those and in the quantity specified in Your order or
Our delivery note once the Goods have left the premises from where they were collected.
5.5 Without
prejudice to the provisions of Condition 10 You will be deemed to have accepted the Goods as being in accordance
with the Contract unless You notify Us in writing of any defect in materials or workmanship or failure to comply
with designs drawings specifications or other data supplied by You or any other failure of the Goods to conform
with the Contract which would be apparent upon reasonable inspection and testing of the Goods within 14
days.
6 Cancellation of Orders
6.1 You will only be able to cancel an order (or any
part of an order) which We have accepted with Our prior written agreement and providing You indemnify Us for all
costs, charges, expenses, damage or loss (including, without limitation, loss of profit) incurred or suffered by
Us in respect of each such order. We are not bound to agree to any such cancellation and may complete the Contract
even if You claim to cancel the Contract.
6.2 You shall not be entitled to cancel for late delivery of any
Goods or late performance of services unless We have agreed with You in writing that any date was to be
binding.
7 Payment, Set-off and Lien
7.1 Payment for the Goods shall be made by
cash, credit or debit card prior to delivery or collection.
7.2 You shall not be entitled to set-off
against sums due to Us under the Contract any amount You claim from Us whether under the Contract or some other
contract between Us. We shall be entitled to set-off any sums owed by Us to You against any sums payable to Us
under the Contract.
7.3 Without prejudice to any other rights and remedies which We may have under the
Contract, We shall in respect of all debts owed by You to Us have a general lien on any of Your goods and property
in Our possession and We shall be entitled after 14 days' notice to You to dispose of such goods or property as We
think fit and to apply any proceeds of sale towards the payment of such debts.
8 Title to the
Goods
8.1 Title to and property in the Goods shall remain vested in Us (even though they have
been delivered and the risk passed to You) until: (a) the price of the Goods;and (b) all other money payable by
You to Us on any other account or under any other contract has been paid discharged or satisfied in full whether
or not due for payment.
9 Performance of the Contract
9.1 Any delivery date or time
quoted is a guide only and shall not be binding. Goods which are stated to be available "ex-stock" (or an
equivalent term) are subject to availability. If We have used Our reasonable endeavours to comply with the
delivery date but are unable to do so this failure shall not constitute a breach of contract entitling You to
terminate the Contract and/or to claim any damages whatsoever against Us and We will be entitled to a reasonable
extension of time in which to despatch or deliver the Goods.
9.2 If Our performance of the Contract or any
part of it is affected by circumstances beyond Our control such as (without limitation) industrial disputes, fire,
severe weather conditions, decisions or actions of any government or other authority, shortages of materials,
power or machinery breakdown or failure, war, threat of war, interruption or reduction in communications or means
of transport, then We may suspend further performance of the Contract for so long as We are so affected and this
suspension shall not constitute a breach of the Contract by Us.
9.3 If such suspension continues for more
than eight consecutive weeks either of us may terminate the Contract by notice in writing. This shall not affect
Our right to be paid under the Contract for any part of the Goods which We have despatched to You before We
suspended performance of the Contract and to be reimbursed all other costs, charges and expenses We have incurred
under the Contract up to the date of termination under this Condition.
9.4 If Our performance of the
Contract is suspended following Our acceptance of a request from You or delayed through Your default (including,
without limitation, lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the
Goods) We will be entitled to payment in accordance with the Contract for any part of the Goods which were already
despatched to You or were ready for despatch or were being manufactured prior to the suspension or delay and also
for loss of profit and any other additional costs that We incur including storage, insurance and interest provided
that: (a) If You fail to collect or accept delivery of the Goods or any part of them within 28 days of
notification from Us that the Goods are ready for collection or delivery, We will be entitled (without prejudice
to Our other remedies under the Contract for such breach) to sell the Goods and to apply the proceeds of sale (if
sold) towards payment of all outstanding sums owed by You to Us under the Contract; (b) We shall store the Goods
at Your risk from the date upon which they are ready for despatch.
9.5 Unless We otherwise expressly agree
in writing, all illustrations and dimensions shown in any of Our catalogues or sales literature are approximate
and We do not guarantee or represent that the Goods will in all cases be identical with the illustrations and
dimensions.
9.6 Any sample supplied by Us is supplied only to give You a general indication of the quality,
colour and/or type thereof and will not constitute a subsequent sale a sale by sample. In particular, but without
limiting the generality of the foregoing, it should be noted that many clay and concrete products such as bricks
and paving materials are subject to natural variations in colour, texture or size. Therefore We cannot guarantee
exact uniformity especially when the Goods are sourced from different batches.
9.7 Many products are
susceptible to damage as a result of transporting and handling ("wastage"). You are advised to allow for an
appropriate amount of wastage when ordering.
10 Guarantee
"The following sets out
Your rights in respect of any loss or damage arising from defects in the Goods or for any statements made by Us.
Please read carefully. You are advised to obtain insurance against any losses You may sustain."
10.1 If You
establish to Our reasonable satisfaction that: (a) there is a defect in the materials or workmanship of the Goods;
or (b) there is some other failure by Us in relation to the conformity of the Goods with the Contract; then We
shall at Our option either: (i) in relation to such defective Goods or failure, re-supply Goods which are in all
respects in accordance with the Contract; or (ii) agree with You that You will retain the Goods in the condition
in which they are in consideration of a reduction in their price to compensate You for the defect or failure;
(iii) refund to You the Contract price of such Goods; subject in every case to the remaining provisions of this
Condition.
10.2 Paragraph 10.1 of this Condition ("the Guarantee") shall not apply unless You notify Us in
writing of the alleged defect or failure immediately upon first becoming aware of it and in any event within 12
months of the delivery of the Goods to You under the provisions of Condition 4.
10.3 If We elect to replace
the Goods We shall deliver the replacement Goods to You at Our own expense at the address at which the defective
or failed Goods were located and the title to the replaced Goods shall (if it has vested in You) re-vest in Us and
You shall make any arrangements as may be necessary to deliver up the replaced Goods to Us.
10.4 The
Guarantee is in substitution for any other of Your legal remedies in respect of the alleged defect or failure and
Our liability shall in all such cases and for all such purposes be limited to the obligations imposed by the
Guarantee;
10.5 Nothing contained in this Condition 10 shall operate so as: (a) to exclude Our liability
for death or personal injury resulting from Our or Our employees' or agents' negligence; (b) to exclude the
conditions and warranties implied by Section 12 of the Sale of Goods Act 1979.
11 Limitation of
Liability
11.1 Except as provided in the Guarantee any term, condition, warranty, representation
or undertaking on Our part as to the quality of the Goods or their fitness or suitability for any purpose or the
standard of workmanship however and whenever expressed or which may be implied by statute custom of the trade or
otherwise is hereby excluded and the provisions of Sections 13 to 15 inclusive of the Sale of Goods Act 1979 shall
not apply to the Contract except where You deal as a consumer within the meaning of Section 12 of the Unfair
Contract Terms Act 1977;
11.2 Except as and to the extent provided by the Guarantee We shall not be liable
to You in contract for any direct loss or damage in excess of the Contract price of the Goods which You may suffer
by reason of any act, omission, neglect or default in relation to the Goods and/or the performance of the Contract
by Us or Our employees or agents.
11.3 Except as and to the extent provided by the Guarantee We shall not
be liable to You in contract, tort or for breach of statutory duty for any indirect or consequential loss
(including economic loss) of any kind whatsoever which You may suffer by reason of any act, omission, neglect or
default (including negligence) in relation to the Goods and/or the performance of the Contract by Us or Our
employees or agents.
11.4 Nothing in this Agreement shall impose on Us any liability in respect of any
representation suggestion or comment with regard to the Goods made by Us or Our employees or agents in the course
of any negotiations between Us leading to the making of the Contract unless We have expressly agreed in writing
that such representation shall be a term of the Contract.
12 Indemnity
12.1 You
acknowledge that We place particular reliance upon the provisions of the Contract and in addition to any other
remedy available to Us, You irrevocably and unconditionally agree to indemnify Us, Our employees, sub-contractors
and agents (who shall have no duty to mitigate their loss) in full and on demand and keep them so indemnified
against all claims, demands, actions, proceedings and all direct and indirect damages, losses, costs and expenses
(including without limitation legal and other professional advisers' fees, economic loss, loss of profit, future
revenue, reputation, goodwill, anticipated savings) and any consequential loss made against or incurred or
suffered by any of them and whether wholly or in part resulting directly or indirectly from the matters listed
below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of
the Contract: (a) the cancellation of any order by You after its acceptance by Us in accordance with Condition
2.1; (b) the return of any Goods by or on behalf of You following delivery of such Goods to You; (c) any breach by
You of any of Your obligations under the Contract.
13 Advice
13.1 Where We provide
advice (including component drawings and/or estimated quantities) incidental to the supply of the Goods, relating
to the Goods or any designs, specifications or requirements supplied by You, such advice is provided free of
charge in good faith on the basis of the information supplied and does not oblige You to purchase the
Goods.
13.2 Such advice will not constitute any representation that the Goods are fit for any particular
purpose and We accept no responsibility for the advice. You must confirm and check such advice, including the
accuracy of any estimated quantities, with Your architect, engineer or other suitably qualified
person.
13.3 In the circumstances that such advice is given We shall not be liable to You in any event for
any loss or damage (whether direct, indirect, consequential or otherwise) arising from such advice (save for death
or personal injury caused by Our negligence).
13.4 You agree the basis on which such advice is supplied as
above and that Our liability is excluded and that this exclusion is reasonable in all the
circumstances.
14 Assignment
14.1 You must not assign, sub-let or otherwise
transfer the Contract or any part of it without Our prior written approval.
14.2 Except for members of Our
Group of Companies (which means any subsidiary or holding company and any subsidiary of such holding company from
time to time) who shall be able to enforce the Contract no third party shall have the benefit of the right to
enforce these Conditions whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Even if a
person who is not a party to the Contract has a right to enforce any of this Contract by virtue of the Act the
parties may, notwithstanding, vary or cancel the Contract by agreement between them without requiring the consent
of such third party.
15 Waiver
15.1 Our rights and remedies in respect of the
Contract or in respect of any failure by You to observe or comply with the terms of the Contract shall not be
diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time by Us nor by
any failure of or delay by Us in asserting or exercising any rights or remedies.
16
Severance
16.1 If at any time any one or more of these Conditions (or any paragraph,
sub-paragraph or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under
any applicable law, it shall be deemed omitted from the Contract and the validity and/or enforceability of the
remaining provisions of these Conditions shall not in any way be affected or impaired.
17
Application
17.1 These Terms and Conditions (as amended or revised by Us from time to time)
shall apply to all future contracts between Us.
18 Headings
18.1 The headings to
these Conditions are inserted for ease of reference and shall not affect their construction.
19 Law
and Jurisdiction
19.1 This Contract shall be governed by and be construed in all respects in
accordance with English Law and subject to Condition 20.2 all disputes or claims arising out of or relating to
this Contract shall be subject to the exclusive jurisdiction of the English courts to which the parties
irrevocably submit.
CS1113
Conditions of Sale - Credit Customers
1 Definitions
1.1 In these Conditions the following expressions shall have
the following meanings: "Our, Us, We" relates to E. H. Smith (Builders Merchants) Limited "You, Your" relates to
the person firm or corporation with whom We contract for the sale of the Goods or supply of services. "the Goods"
means the products which are to be sold by Us and purchased by You under the Contract. "the Contract" means any
contract for the sale of the Goods or supply of services by Us to You incorporating these Conditions and arising
from Our acceptance of Your order.
2 General
2.1 Any quotation or estimate given by
Us is an invitation to You to place an order which shall be an offer open to acceptance by Us and no order placed
in response to or any other acceptance of a quotation or estimate shall give rise to a contract binding upon Us. A
binding contract shall only come into effect upon the earliest of any of the following: (a) Our placing an order
for supply or manufacture with Our suppliers; (b) despatch of the Goods; or (c) despatch of Our written
acknowledgement of order.
2.2 These Conditions are the only conditions upon which We transact business and
shall be incorporated in the Contract to the exclusion of all other terms and conditions including any terms or
conditions specified or referred to in any order placed by You. Any reference in any document forming part of or
evidencing the Contract (including any order design drawing specification or other similar document) to any of
Your terms or conditions of purchase or business shall not have the effect of incorporating any such terms or
conditions into the Contract.
2.3 These Conditions can only be varied with Our written
agreement.
3 Prices
3.1 All prices are exclusive of Value Added Tax which will be
charged at the rate applicable at the relevant tax point.
3.2 Prices in any quotations, estimates,
acknowledgements of orders or other documents issued prior to despatch of the Goods are not binding upon Us unless
the price was stated to be fixed in the Contract and You have complied in all respects with any provisions
relating to such fixed price. The price charged shall be the price ruling at the date of despatch of the Goods
which We may increase to reflect any increase in the cost to Us which is due to any factor beyond Our
control.
3.3 We reserve the right to charge for any packaging materials (including pallets) that We
consider are necessary for the delivery of the Goods. If any packaging materials which have been charged of r are
returned to Us by You in good condition, We shall issue a credit note in respect of them. If any packaging
materials are returned directly to a supplier We shall only issue a credit note when and if We receive a credit
from that supplier. You shall not deduct sums due in anticipation of such credits.
3.4 Where We agree to
take back into stock Goods already delivered to You, We reserve the right to impose a handling charge which You
agree is a genuine pre-estimate of Our expenses. This charge shall be up to 15% of the value of the Goods
concerned when You deliver them back to Our depot, and up to 25% of the value of the Goods concerned when We
arrange collection.
3.5 Any query on price charged must be notified to Us in writing strictly within 21
days of the date of the relevant invoice, otherwise said invoice shall be deemed due and payable in accordance
with the provisions of clause 7, below.
4 Delivery and Passing of Risk
4.1 The
Goods shall be delivered to You at the place specified in the Contract or as subsequently agreed between us. If no
place for delivery is specified or agreed, delivery shall take place at Our premises immediately prior to loading
for despatch to You.
4.2 The Goods are at Your risk from the time they are loaded on to the vehicle for
despatch to You whether that vehicle is Ours, Yours or another's.
4.3 We are entitled to make delivery of
the Goods by instalments and to invoice You for each instalment despatched.
4.4 We are not bound by any
delivery date or time put forward by You at any time and any delivery date or time stated by Us at any time
whether prior to or during the Contract and whether in writing or otherwise is an estimate only and shall not be
binding. Time of delivery shall not be of the essence.
4.5 If We deliver to You or to a place agreed with
You, You must ensure that there is adequate labour and facilities for unloading the Goods safely and promptly and
within a reasonable time and that all approach roads and access points are suitable. If you do not do so You must
reimburse Us for any charges, costs or expenses We incur as a result.
4.6 If We deliver the Goods to You on
Our own or a third party's transport, You must indemnify Us against any additional costs claims or proceedings
arising out of any delay caused by lack of suitable access to or egress from the premises, facilities for
offloading, signing-off of delivery notes or any other cause whatsoever arising from Your or Your employees'
default or negligence.
4.7 Where delivery is effected on a third party's transport We shall not be liable
for damage occasioned by any negligent act or omission of that third party, its servants or agents, provided that
We have exercised reasonable care in selecting that third party.
5 Inspection
5.1
Where We have arranged delivery or delivered directly You must inspect the Goods immediately upon their arrival at
the destination to which they are despatched under the Contract and check: (a) whether the Goods have been damaged
in transit; (b) that the Goods are those and in the quantity specified in Your order or stated on Our delivery
note.
5.2 Any discrepancy in description, quality or quantity between the Goods delivered and those
described in Our Delivery Note or specified in Your order and any damage to the Goods must be notified to Us in
writing within three working days of Your receipt of the Goods. In the case of non-delivery of the Goods You must
notify Us in writing within three working days of Your receipt of Our delivery note or invoice or relevant monthly
statement of account (whichever is the earlier). We shall not be liable for any claim in respect of damage in
transit or non-delivery (in whole or in part) unless You comply strictly with the provisions of this Condition
5.
5.3 Where You collect or arrange collection or delivery of the Goods, We shall accept no claims that the
Goods are not those and in the quantity specified in Your order or Our delivery note once the Goods have left the
premises from where they were collected.
5.4 Without prejudice to the provisions of Condition 10 You will
be deemed to have accepted the Goods as being in accordance with the Contract unless You notify Us in writing of
any defect in materials or workmanship or failure to comply with designs drawings specifications or other data
supplied by You or any other failure of the Goods to conform with the Contract which would be apparent upon
reasonable inspection and testing of the Goods within 14 days.
6 Cancellation of
Orders
6.1 You will only be able to cancel an order (or any part of an order) which We have
accepted with Our prior written agreement and providing You indemnify Us for all costs, charges, expenses, damage
or loss (including, without limitation, loss of profit) incurred or suffered by Us in respect of each such order.
We are not bound to agree to any such cancellation and may complete the Contract even if You claim to cancel the
Contract.
6.2 You shall not be entitled to cancel for late delivery of any Goods or late performance of
services unless We have agreed with You in writing that any date was to be binding.
7 Payment,
Set-off and Lien
7.1 Payment for the Goods shall be made nett cash no later than the last day of
the month following the month in which the relevant Goods were delivered, or no later than the last day of the
month following Our receipt of an invoice for the buying price of the Goods from Our supplier whichever comes
first.
7.2 If You either: (a) fail to comply with Your payment obligations; or (b) exceed any credit limit
We have set for You (whether You are aware of it or not); We may withhold despatch of any part of the Goods
remaining to be despatched, suspend manufacture of Goods remaining to be manufactured, suspend Our performance of
any other contract between Us or require You to pay for Goods prior to their despatch to You.
7.3 If any
sum due from You to Us under the Contract or any other contract is not paid on or before the due date for payment,
all sums You owe to Us shall become due and payable immediately.
7.4 All amounts due from You in payment
for the Goods which are not paid on or before their due date for payment shall bear interest both before and after
judgement at the statutory rate and We shall be entitled to reasonable debt recovery costs as set out in the Late
Payment of Commercial Debts (Interest)A ct 1998 and the cost of obtaining judgement or payment to include all
reasonable professional costs including legal fees and all other costs of pursuing a debt recovery
procedure.
7.5 You shall not be entitled to set-of against sums due to Us under the Contract any amount You
claim from Us whether under the Contract or some other contract between Us. We shall be entitled to set-of any
sums owed by Us to You against any sums payable to Us under the Contract. Subject to Condition 5.4. Your payment
of an invoice shall constitute Your acceptance that the Goods and price charged are in accordance with the
Contract.
7.6 Without prejudice to any other rights and remedies which We may have under the Contract, We
shall in respect of all debts owed by You to Us have a general lien on any of Your goods and property in Our
possession and We shall be entitled after 14 days' notice to You to dispose of such goods or property as We think
fit and to apply any proceeds of sale towards the payment of such debts.
8 Title to the
Goods
8.1 Title to and property in the Goods shall remain vested in Us (even though they have
been delivered and risk has passed to You) until: (a) the price of the Goods; and (b) all other money payable by
You to Us on any other account or under any other contract has been paid discharged or satisfied in full whether
or not due for payment.
8.2 Until title to and property in the Goods pass to You the following provisions
shall apply: (a) We may at any time without prior notice to You require You to deliver the Goods up to Us and We
may repossess and resell the Goods if any of the events specified in Condition 15 occurs or fi any sum due to Us
from You under the Contract or on any other account or under any other contract is not paid when due. (b) You must
store the Goods in a proper manner in conditions which adequately protect and preserve them without any charge to
Us and not tamper with any identification upon the Goods or their packaging but shall ensure that they are clearly
identified as belonging to Us. We will be entitled to examine the Goods in storage at any timed during normal
business hours but must give You reasonable notice of Our intention to do so and to enter upon any premises You
own, occupy or control for that purpose.
8.3 Our rights and remedies set out in this Condition 8 are in
addition to and shall not in any way prejudice, limit or restrict any of Our other rights or remedies under the
Contract.
8.4 You are authorised to sell the Goods in the ordinary course of Your business and to pass good
title in the Goods to Your customers if they are purchasers in good faith without notice of Our rights but You are
not authorised to give any representation or warranty on Our behalf regarding the Goods. This right shall
automatically cease on the occurrence of any event specified in Condition 15 and/or if any sum owed to Us by You
is not paid when due.
9 Performance of the Contract
9.1 Any delivery date or time
quoted is a guide only and shall not be binding. Goods which are stated to be available "ex-stock" o(r an
equivalent term) are subject to availability. If We have used Our reasonable endeavours to comply with the
delivery date but are unable to do so this failure shall not constitute a breach of contract entitling You to
terminate the Contract and/or to claim any damages whatsoever against Us and We will be entitled to a reasonable
extension of time in which to despatch or deliver the Goods.
9.2 If Our performance of the Contract or any
part of it is affected by circumstances beyond Our control such as (without limitation) industrial disputes, fire,
severe weather conditions, decisions or actions of any government or other authority, shortages of materials,
power or machinery breakdown or failure, war, threat of war, interruption or reduction in communications or means
of transport, then We may suspend further performance of the Contract for so long as We are so affected and this
suspension shall not constitute a breach of the Contract by Us.
9.3 If such suspension continues for more
than eight consecutive weeks either of us may terminate the Contract by notice in writing. This shall not affect
Our right to be paid under the Contract for any part of the Goods which We have despatched to You before We
suspended performance of the Contract and to be reimbursed all other costs, charges and expenses We have incurred
under the Contract up to the date of termination under this Condition. 9.4 If Our performance of the Contract
is suspended following Our acceptance of a request from You or delayed through Your default (including, without
limitation, lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the Goods)
We will be entitled to payment in accordance with the Contract for any part of the Goods which were already
despatched to You or were ready for despatch or were being manufactured prior tot he suspension or delay and also
for loss of profit and any other additional costs that We incur including storage, insurance and interest provided
that: (a) if You fail to collect or accept delivery of the Goods or any part of them within 28 days of
notification from Us that the Goods are ready for collection or delivery, We will be entitled (without prejudice
to Our other remedies under the Contract for such breach) to sell the Goods and to apply the proceeds of sale (if
sold) towards payment of all outstanding sums owed by You to Us under the Contract; (b) We shall store the Goods
at Your risk from the date upon which they are ready for despatch. 9.5 Unless We otherwise expressly agree in
writing, all illustrations and dimensions shown in any of Our catalogues or sales literature are approximate and
We do not guarantee or represent that the Goods will in all cases be identical with the illustrations and
dimensions.
9.6 Any sample supplied by Us is supplied only to give You a general indication of the quality,
colour and/or type thereof and will not constitute a subsequent sale a sale by sample.
10
Guarantee
"The following sets out Your rights in respect of any loss or damage arising from
defects in the Goods or for any statements made by Us. Please read carefully. You are advised to obtain insurance
against any losses You may sustain."
10.1 If You establish to Our reasonable satisfaction that: (a) there
is a defect in the materials or workmanship of the Goods; or (b) there is some other failure by Us in relation to
the conformity of the Goods with the Contract; then We shall at Our option either: (i) in relation to such
defective Goods or failure, re-supply Goods which are in all respects in accordance with the Contract ;or (ii)
agree with You that You will retain the Goods in the condition in which they are inc consideration of a reduction
in their price to compensate You for the defect or failure; or (iii) refund to You the Contract price of such
Goods; subject in every case to the remaining provisions of this Condition.
10.2 Paragraph 10.1 of this
Condition ("the Guarantee") shall not apply unless You notify Us in writing of the alleged defect or failure
immediately upon first becoming aware of it and in any event within 12 months of the delivery of the Goods to You
under the provisions of Condition 4.
10.3 If We elect to replace the Goods We shall deliver the replacement
Goods to You at Our own expense at the address at which the defective or failed Goods were located and the title
to the replaced Goods shall (if it has vested in You) re-vest in Us and You shall make any arrangements as may be
necessary to deliver up the replaced Goods to Us.
10.4 The Guarantee is in substitution for any other of
Your legal remedies in respect of the alleged defect or failure and Our liability shall in all such cases and for
all such purposes be limited to the obligations imposed by the Guarantee;
10.5 Nothing contained in this
Condition 10 shall operate so as: (a) to exclude Our liability for death or personal injury resulting from Our or
Our employees 'or agents' negligence; (b) to exclude the conditions and warranties implied by Section 12 of the
Sale of Goods Act 1979.
11 Limitation of Liability
11.1 Except as provided in the
Guarantee any term, condition, warranty, representation or undertaking on Our part as to the quality of the Goods
or their fitness or suitability for any purpose ort he standard of workmanship however and whenever expressed or
which may be implied by statute custom of the trade or otherwise is hereby excluded and the provisions of Sections
13 to 15 inclusive of the Sale of Goods Act 1979 shall not apply to the Contract except where You deal as a
consumer within the meaning of Section 12 of the Unfair Contract Terms Act 1977;
11.2 Except as and to the
extent provided by the Guarantee We shall not be liable to You in contract for any direct loss or damage in excess
of the Contract price of the Goods which You may suffer by reason of any act, omission, neglect or default in
relation to the Goods and/or the performance of the Contract by Us or Our employees or agents. Our liability in
respect of direct loss arising in tort or breach of statutory duty shall be limited to £500,000.
11.3
Except as and to the extent provided by the Guarantee We shall not be liable to You in contract, tort or for
breach of statutory duty for any indirect or consequential loss (including economic loss) of any kind whatsoever
which You may suffer by reason of any act, omission, neglect or default (including negligence) in relation to the
Goods and/or the performance of the Contract by Us or Our employees or agents.
11.4 Nothing in this
Agreement shall impose on Us any liability in respect of any representation suggestion or comment with regard to
the Goods made by Us or Our employees or agents in the course of any negotiations between Us leading to the making
of the Contract unless We have expressly agreed in writing that such representation shall be a term of the
Contract.
12 Indemnity
12.1 You acknowledge that We place particular reliance upon
the provisions of the Contract and in addition to any other remedy available to Us, You irrevocably and
unconditionally agree to indemnify Us, Our employees, sub-contractors and agents (who shall have no duty to
mitigate their loss) in full and on demand and keep them so indemnified against all claims, demands, actions,
proceedings and all direct and indirect damages, losses, costs and expenses (including without limitation legal
and other professional advisers' fees, economic loss, loss of profit, future revenue, reputation, goodwill,
anticipated savings) and any consequential loss made against or incurred or suffered by any of them and whether
wholly or in part resulting directly or indirectly from the matters listed below whether or not such losses or the
consequences of the matters listed below were foreseeable at the date of the Contract: (a) the cancellation of any
order by You after its acceptance by Us in accordance with Condition 2.1; (b) the return of any Goods by or on
behalf of You following delivery of such Goods to You; (c) any breach by You of any of Your obligations under the
Contract.
13 Advice
13.1 Where We provide advice (including component drawings
and/or estimates of quantities) incidental to the supply of the Goods, relating to the Goods or any designs,
specifications or requirements supplied by You, such advice is provided free of charge in good faith on the basis
of the information supplied and does not oblige You to purchase the Goods.
13.2 Such advice will not
constitute any representation that the Goods are fit for any particular purpose and We accept no responsibility
for the advice. You must confirm and check such advice, including the accuracy of any estimated quantities, with
Your architect, engineer or other suitably qualified person.
13.3 In the circumstances that such advice is
given We shall not be liable to You in any event for any loss or damage (whether direct, indirect, consequential
or otherwise) arising from such advice (save for death or personal injury caused by Our negligence).
13.4
You agree the basis on which such advice is supplied as above and that Our liability is excluded and that this
exclusion is reasonable in all the circumstances.
14 Assignment
14.1 You must not
assign, sub-let or otherwise transfer the Contract or any part of it without Our prior written
approval.
14.2 Except for members of Our Group of Companies (which means any subsidiary or holding company
and any subsidiary of such holding company from time to time) who shall be able to enforce the Contract no third
party shall have the benefit of the right to enforce these Conditions whether under the Contracts (Rights of Third
Parties) Act 1999 or otherwise. Even if a person who is not a party to the Contract has a right to enforce any of
this Contract by virtue of the Act the parties may, notwithstanding, vary or cancel the Contract by agreement
between them without requiring the consent of such third party.
15 Breach of Contract by or
insolvency of the Customer
15.1 If any of the following events occurs or in Our opinion is
reasonably likely to occur: (a) You commit any breach of the Contract or any other contract between Us; or (b) any
event which would entitle any landlord of Yours to exercise any right of distress or seizure or possession against
the Goods; or (c) any distress execution or diligence is levied upon any of Your goods or property and is not paid
out within 7 days; or (d) You (or where You are a partnership any partner) offer to make any arrangements with or
for the benefit of Your or his creditors generally or there is presented in relation to You or any such partner:
(i) a petition of bankruptcy; (ii) a petition for sequestration; or (e) You (being a limited company) appear to be
unable to pay Your debts within the meaning of Section 123 of the Insolvency Act 1986 or call a meeting or present
or have presented a petition to wind up or present or have presented a petition to appoint an administrator or
have a judicial factor, an administrative receiver, receiver and manager or receiver appointed of the whole or any
part of Your business undertaking property or assets; or (f) You have any award or Judgment made against You by a
County Court or a Division of the High Court (or their Scottish equivalents); then Your authority to sell Goods
title to which remains Ours shall cease and We may without prejudice to any other rights or remedies We may have
against You straight away suspend further performance of the Contract or terminate the Contract as We think fit.
Notwithstanding any such suspension or termination, You must pay Us in accordance with the Contract for all Goods
despatched or manufactured by Us prior to any suspension or termination and You shall indemnify Us against any
loss liability or expense incurred by Us in connection with the Contract including (without limitation) loss of
profit, liabilities and expenses in connection with raw materials and tooling obtained or produced for the
purposes of the Contract and the cost of labour and overhead expenses reasonably attributable to the
Contract.
16 Waiver
16.1 Our rights and remedies in respect of the Contract or in
respect of any failure by You to observe or comply with the terms o f the Contract shall not be diminished waived
or extinguished by the granting of any indulgence, forbearance or extension of time by Us nor by any failure of or
delay by Us in asserting or exercising any rights or remedies.
17 Severance
17.1 If
at any time any one or more of these Conditions (or any paragraph, sub-paragraph or any part thereof) is held to
be or becomes void or otherwise unenforceable for any reason under any applicable law, it shall be deemed omitted
from the Contract and the validity and/or enforceability of the remaining provisions of these Conditions shall not
in any way be affected or impaired.
18 Application
18.1 These Terms and Conditions
(as amended or revised by Us from time to item) shall apply to all future contracts between Us.
19
Headings
19.1 The headings to these Conditions are Inserted for ease of reference and shall not
affect their construction.
20 Law and Jurisdiction
20.1 This Contract shall be
governed by and be construed in all respects in accordance with English Law and all disputes or claims arising out
of or relating to this Contract shall be subject to the exclusive jurisdiction of the English courts to which the
parties irrevocably submit.
AH0617
Conditions of Sale - Self Builders
1 Definitions
1.1 In these Conditions the following expressions shall have
the following meanings: "Our, Us, We" relates to E. H. Smith (Builders Merchants) Limited "You, Your" relates to
the person with whom We contract for the sale of the Goods or supply of services. "the Goods" means the products
which are to be sold by Us and purchased by You under the Contract. "the Contract" means any contract for the sale
of the Goods or supply of services by Us to You incorporating these Conditions and arising from Our acceptance of
Your order.
2 General
2.1 Any quotation or estimate given by Us is an invitation to
You to place an order which shall be an offer open to acceptance by Us and no order placed in response to or any
other acceptance of a quotation or estimate shall give rise to a contract binding upon Us. A binding contract
shall only come into effect upon the earliest of any of the following: (a) Our placing an order for supply or
manufacture with Our suppliers; (b) despatch of the Goods; or (c) despatch of Our written acknowledgement of
order.
2.2 These Conditions are the only conditions upon which We transact business and shall be
incorporated in the Contract to the exclusion of all other terms and conditions including any terms or conditions
specified or referred to in any order placed by You. Any reference in any document forming part of or evidencing
the Contract (including any order design drawing specification or other similar document) to any of Your terms or
conditions of purchase or business shall not have the effect of incorporating any such terms or conditions into
the Contract.
2.3 These Conditions can only be varied with Our written agreement.
3
Prices
3.1 All prices are exclusive of Value Added Tax which will be charged at the rate
applicable at the relevant tax point.
3.2 Prices in any quotations, estimates, acknowledgements of orders
or other documents issued prior to despatch of the Goods are not binding upon Us unless the price was stated to be
fixed in the Contract and You have complied in all respects with any provisions relating to such fixed price. The
price charged shall be the price ruling at the date of despatch of the Goods which We may increase to reflect any
increase in the cost to Us which is due to any factor beyond Our control.
3.3 We reserve the right to
charge for any packaging materials (including pallets) that We consider are necessary for the delivery of the
Goods. If any packaging materials which have been charged for are returned to Us by You in good condition, We
shall issue a credit note in respect of them. If any packaging materials are returned directly to a supplier We
shall only issue a credit note when and if We receive a credit from that supplier. You shall not deduct sums due
in anticipation of such credits.
3.4 Where We agree to take back into stock Goods already delivered to You,
We reserve the right to impose a handling charge which You agree is a genuine pre-estimate of Our expenses. This
charge shall be up to 15% of the value of the Goods concerned when You deliver them back to Our depot, and up to
25% of the value of the Goods concerned when We arrange collection.
3.5 Any query on price must be notified
to Us in writing strictly within 21 days of the date of the relevant invoice, otherwise said invoice shall be
deemed due and payable in accordance with the provisions of clause 7, below.
4 Delivery and Passing
of Risk
4.1 The Goods shall be delivered to You at the place specified in the Contract or as
subsequently agreed between us. If no place for delivery is specified or agreed, delivery shall take place at Our
premises immediately prior to loading for despatch to You.
4.2 The Goods are at Your risk from the time
they are loaded on to the vehicle for despatch to You whether that vehicle is Ours, Yours or another's. 4.3 We
are entitled to make delivery of the Goods by instalments and to invoice You for each instalment
despatched.
4.4 We are not bound by any delivery date or time put forward by You at any time and any
delivery date or time stated by Us at any time whether prior to or during the Contract and whether in writing or
otherwise is an estimate only and shall not be binding. Time of delivery shall not be of the essence.
4.5
If We deliver to You or to a place agreed with You, You must ensure that there are adequate facilities for
unloading the Goods safely and promptly and within a reasonable time and that all approach roads and access points
are suitable. If you do not do so You must reimburse Us for any charges, costs or expenses We incur as a
result.
4.6 If We deliver the Goods to You on Our own or a third party's transport, You must indemnify Us
against any additional costs claims or proceedings arising out of any delay caused by lack of suitable access to
or egress from the premises, facilities for off-loading, signing-off of delivery notes or any other cause
whatsoever arising from Your or Your agents' default or negligence.
4.7 Where delivery is effected on a
third party's transport We shall not be liable for damage occasioned by any negligent act or omission of that
third party, its servants or agents, provided that We have exercised reasonable care in selecting that third
party.
5 Inspection
5.1 Where We have arranged delivery or delivered directly You
must inspect the Goods immediately upon their arrival at the destination to which they are despatched under the
Contract and check: (a) whether the Goods have been damaged in transit; (b) that the Goods are those and in the
quantity specified in Your order or stated on Our delivery note.
5.2 Any discrepancy between the Goods
delivered and those described in Our Delivery Note or specified in Your order and any damage to the Goods in
transit must be notified to Us in writing within three working days of Your receipt of the Goods.
5.3 In
the case of alleged short-delivery, or non-delivery of the Goods You must notify Us in writing within three
working days of Your receipt of Our delivery note or invoice (whichever is the earlier). No claim in respect of
short-delivery, non-delivery ,or damage in transit will be considered by Us unless You comply with the provisions
of this Condition.
5.4 Where You collect or arrange collection or delivery of the Goods, We shall accept no
claims that the Goods are not those and in the quantity specified in Your order or Our delivery note once the
Goods have left the premises from where they were collected.
5.5 Without prejudice to the provisions of
Condition 10 You will be deemed to have accepted the Goods as being in accordance with the Contract unless You
notify Us in writing of any defect in materials or workmanship or failure to comply with designs drawings
specifications or other data supplied by You or any other failure of the Goods to conform with the Contract which
would be apparent upon reasonable inspection and testing of the Goods within 14 days.
6
Cancellation of Orders
6.1 You will only be able to cancel an order (or any part of an order)
which We have accepted with Our prior written agreement and providing You indemnify Us for all costs, charges,
expenses, damage or loss (including, without limitation, loss of profit) incurred or suffered by Us in respect of
each such order. We are not bound to agree to any such cancellation and may complete the Contract even if You
claim to cancel the Contract.
6.2 You shall not be entitled to cancel for late delivery of any Goods or
late performance of services unless We have agreed with You in writing that any date was to be
binding.
7 Payment, Set-off and Lien
7.1 Payment for the Goods shall be made nett
cash no later than the last day of the month following the month in which the relevant Goods were
delivered.
7.2 If You either: (a) fail to comply with Your payment obligations; or (b) exceed any credit
limit We have set for You (whether You are aware of it or not); We may withhold despatch of any part of the Goods
remaining to be despatched, suspend manufacture of Goods remaining to be manufactured, suspend Our performance of
any other contract between Us or require You to pay for Goods prior to their despatch to You.
7.3 If any
sum due from You to Us under the Contract or any other contract is not paid on or before the due date for payment,
all sums You owe to Us shall become due and payable immediately.
7.4 All amounts due from You in payment
for the Goods which are not paid on or before their due date for payment shall bear interest both before and after
judgement until actual payment at the prevailing statutory rate and We shall be entitled to reasonable debt
recovery costs and the cost of obtaining judgement or payment to include all reasonable professional costs
including legal fees and all other costs of pursuing a debt recovery procedure.
7.5 You shall not be
entitled to set-off against sums due to Us under the Contract any amount You claim from Us whether under the
Contract or some other contract between Us. We shall be entitled to set-off any sums owed by Us to You against any
sums payable to Us under the Contract. Subject to Condition 5.5 Your payment of an invoice shall constitute Your
acceptance that the Goods and price charged are in accordance with the Contract.
7.6 Without prejudice to
any other rights and remedies which We may have under the Contract, We shall in respect of all debts owed by You
to Us have a general lien on any of Your goods and property in Our possession and We shall be entitled after 14
days' notice to You to dispose of such goods or property as We think fit and to apply any proceeds of sale towards
the payment of such debts.
8 Title to the Goods
8.1 Title to and property in the
Goods shall remain vested in Us (even though they have been delivered and risk has passed to You) until: (a) the
price of the Goods; and (b) all other money payable by You to Us on any other account or under any other contract
has been paid discharged or satisfied in full whether or not due for payment.
8.2 Until title to and
property in the Goods pass to You the following provisions shall apply: (a) We may at any time without prior
notice to You require You to deliver the Goods up to Us and We may repossess and resell the Goods if any of the
events specified in Condition 15 occurs or if any sum due to Us from You under the Contract or on any other
account or under any other contract is not paid when due. (b) You must store the Goods in a proper manner in
conditions which adequately protect and preserve them without any charge to Us and not tamper with any
identification upon the Goods or their packaging but shall ensure that they are clearly identified as belonging to
Us. We will be entitled to examine the Goods in storage at any time during normal business hours but must give You
reasonable notice of Our intention to do so and to enter upon any premises You own, occupy or control for that
purpose.
8.3 Our rights and remedies set out in this Condition 8 are in addition to and shall not in any
way prejudice, limit or restrict any of Our other rights or remedies under the Contract.
9
Performance of the Contract
9.1 Any delivery date or time quoted is a guide only and shall not
be binding. Goods which are stated to be available "ex-stock" (or an equivalent term) are subject to availability.
If We have used Our reasonable endeavours to comply with the delivery date but are unable to do so this failure
shall not constitute a breach of contract entitling You to terminate the Contract and/or to claim any damages
whatsoever against Us and We will be entitled to a reasonable extension of time in which to despatch or deliver
the Goods.
9.2 If Our performance of the Contract or any part of it is affected by circumstances beyond Our
control such as (without limitation) industrial disputes, fire, severe weather conditions, decisions or actions of
any government or other authority, shortages of materials, power or machinery breakdown or failure, war, threat of
war, interruption or reduction in communications or means of transport, then We may suspend further performance of
the Contract for so long as We are so affected and this suspension shall not constitute a breach of the Contract
by Us.
9.3 If such suspension continues for more than eight consecutive weeks either of us may terminate
the Contract by notice in writing. This shall not affect Our right to be paid under the Contract for any part of
the Goods which We have despatched to You before We suspended performance of the Contract and to be reimbursed all
other costs, charges and expenses We have incurred under the Contract up to the date of termination under this
Condition.
9.4 If Our performance of the Contract is suspended following Our acceptance of a request from
You or delayed through Your default (including, without limitation, lack of, incomplete or incorrect instructions
or refusal to collect or accept delivery of the Goods) We will be entitled to payment in accordance with the
Contract for any part of the Goods which were already despatched to You or were ready for despatch or were being
manufactured prior to the suspension or delay and also for loss of profit and any other additional costs that We
incur including storage, insurance and interest provided that: (a) if You fail to collect or accept delivery of
the Goods or any part of them within 28 days of notification from Us that the Goods are ready for collection or
delivery, We will be entitled (without prejudice to Our other remedies under the Contract for such breach) to sell
the Goods and to apply the proceeds of sale (if sold) towards payment of all outstanding sums owed by You to Us
under the Contract; (b) We shall store the Goods at Your risk from the date upon which they are ready for
despatch.
9.5 Unless We otherwise expressly agree in writing, all illustrations and dimensions shown in any
of Our catalogues or sales literature are approximate and We do not guarantee or represent that the Goods will in
all cases be identical with the illustrations and dimensions.
9.6 Any sample supplied by Us is supplied
only to give You a general indication of the quality, colour and/or type thereof and will not constitute a
subsequent sale a sale by sample.
10 Guarantee
"The following sets out Your rights
in respect of any loss or damage arising from defects in the Goods or for any statements made by Us. Please read
carefully. You are advised to obtain insurance against any losses You may sustain."
10.1 If You establish
to Our reasonable satisfaction that: (a) there is a defect in the materials or workmanship of the Goods; or (b)
there is some other failure by Us in relation to the conformity of the Goods with the Contract; then We shall at
Our option either: (i) in relation to such defective Goods or failure, re-supply Goods which are in all respects
in accordance with the Contract; or (ii)agree with You that You will retain the Goods in the condition in which
they are in consideration of a reduction in their price to compensate You for the defect or failure; (iii)refund
to You the Contract price of such Goods; subject in every case to the remaining provisions of this
Condition.
10.2 Paragraph 10.1 of this Condition ("the Guarantee") shall not apply unless You notify Us in
writing of the alleged defect or failure immediately upon first becoming aware of it and in any event within 12
months of the delivery of the Goods to You under the provisions of Condition 4.
10.3 If We elect to replace
the Goods We shall deliver the replacement Goods to You at Our own expense at the address at which the defective
or failed Goods were located and the title to the replaced Goods shall (if it has vested in You) re-vest in Us and
You shall make any arrangements as may be necessary to deliver up the replaced Goods to Us.
10.4 The
Guarantee is in substitution for any other of Your legal remedies in respect of the alleged defect or failure and
Our liability shall in all such cases and for all such purposes be limited to the obligations imposed by the
Guarantee;
10.5 Nothing contained in this Condition 10 shall operate so as: (a) to exclude Our liability
for death or personal injury resulting from Our or Our employees' or agents' negligence; (b) to exclude the
conditions and warranties implied by Section 12 of the Sale of Goods Act 1979.
11 Limitation of
Liability
11.1 Except as provided in the Guarantee any term, condition, warranty, representation
or undertaking on Our part as to the quality of the Goods or their fitness or suitability for any purpose or the
standard of workmanship however and whenever expressed or which may be implied by statute custom of the trade or
otherwise is hereby excluded and the provisions of Sections 13 to 15 inclusive of the Sale of Goods Act 1979 shall
not apply to the Contract except where You deal as a consumer within the meaning of Section 12 of the Unfair
Contract Terms Act 1977;
11.2 Except as and to the extent provided by the Guarantee We shall not be liable
to You in contract for any direct loss or damage in excess of the Contract price of the Goods which You may suffer
by reason of any act, omission, neglect or default in relation to the Goods and/or the performance of the Contract
by Us or Our employees or agents.
11.3 Except as and to the extent provided by the Guarantee We shall not
be liable to You in contract, tort or for breach of statutory duty for any indirect or consequential loss
(including economic loss) of any kind whatsoever which You may suffer by reason of any act, omission, neglect or
default (including negligence) in relation to the Goods and/or the performance of the Contract by Us or Our
employees or agents . 11.4 Nothing in this Agreement shall impose on Us any liability in respect of any
representation suggestion or comment with regard to the Goods made by Us or Our employees or agents in the course
of any negotiations between Us leading to the making of the Contract unless We have expressly agreed in writing
that such representation shall be a term of the Contract.
12 Indemnity
12.1 You
acknowledge that We place particular reliance upon the provisions of the Contract and in addition to any other
remedy available to Us, You irrevocably and unconditionally agree to indemnify Us, Our employees, sub-contractors
and agents (who shall have no duty to mitigate their loss) in full and on demand and keep them so indemnified
against all claims, demands, actions, proceedings and all direct and indirect damages, losses, costs and expenses
(including without limitation legal and other professional advisers' fees, economic loss, loss of profit, future
revenue, reputation, goodwill, anticipated savings) and any consequential loss made against or incurred or
suffered by any of them and whether wholly or in part resulting directly or indirectly from the matters listed
below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of
the Contract: (a) the cancellation of any order by You after its acceptance by Us in accordance with Condition
2.1; (b) the return of any Goods by or on behalf of You following delivery of such Goods to You; (c) any breach by
You of any of Your obligations under the Contract.
13 Advice
13.1 Where We provide
advice (including component drawings and/or estimates of quantities) incidental to the supply of the Goods,
relating to the Goods or any designs, specifications or requirements supplied by You, such advice is provided free
of charge in good faith on the basis of the information supplied and does not oblige You to purchase the
Goods.
13.2 Such advice will not constitute any representation that the Goods are fit for any particular
purpose and We accept no responsibility for the advice. You must confirm and check such advice, including the
accuracy of any estimated quantities, with Your architect, engineer or other suitably qualified
person.
13.3 In the circumstances that such advice is given We shall not be liable to You in any event for
any loss or damage (whether direct, consequential or otherwise) arising from such advice (save for death or
personal injury caused by Our negligence).
13.4 You agree the basis on which such advice is supplied as
above and that Our liability is excluded and that this exclusion is reasonable in all the
circumstances.
14 Assignment
14.1 You must not assign, sub-let or otherwise
transfer the Contract or any part of it without Our prior written approval.
14.2 Except for members of Our
Group of Companies (which means any subsidiary or holding company and any subsidiary of such holding company from
time to time) who shall be able to enforce the Contract no third party shall have the benefit of the right to
enforce these Conditions whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. Even if a
person who is not a party to the Contract has a right to enforce any of this Contract by virtue of the Act the
parties may, notwithstanding, vary or cancel the Contract by agreement between them without requiring the consent
of such third party.
15 Breach of Contract by or insolvency of the Customer
15.1 If
any of the following events occurs or in Our opinion is reasonably likely to occur: (a) You commit any breach of
the Contract or any other contract between Us; or (b) any event which would entitle any landlord of Yours to
exercise any right of distress or seizure or possession against the Goods; or (c) any distress execution or
diligence is levied upon any of Your goods or property and is not paid out within 7 days; or (d) You offer to make
any arrangements with or for the benefit of Your creditors generally or there is presented in relation to You; (i)
a petition of bankruptcy; (ii) a petition for sequestration; or (f) You have any award or Judgment made against
You by a County Court or a Division of the High Court (or their Scottish equivalents); then We may without
prejudice to any other rights or remedies We may have against You straight away suspend further performance of the
Contract or terminate the Contract as We think fit. Notwithstanding any such suspension or termination, You must
pay Us in accordance with the Contract for all Goods despatched or manufactured by Us prior to any suspension or
termination and You shall indemnify Us against any loss liability or expense incurred by Us in connection with the
Contract including (without limitation) loss of profit, liabilities and expenses in connection with raw materials
and tooling obtained or produced for the purposes of the Contract and the cost of labour and overhead expenses
reasonably attributable to the Contract.
16 Waiver
16.1 Our rights and remedies in
respect of the Contract or in respect of any failure by You to observe or comply with the terms of the Contract
shall not be diminished waived or extinguished by the granting of any indulgence, forbearance or extension of time
by Us nor by any failure of or delay by Us in asserting or exercising any rights or remedies.
17
Severance
17.1 If at any time any one or more of these Conditions (or any paragraph,
sub-paragraph or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under
any applicable law, it shall be deemed omitted from the Contract and the validity and/or enforceability of the
remaining provisions of these Conditions shall not in any way be affected or impaired.
18
Application
18.1 These Terms and Conditions (as amended or revised by Us from time to time)
shall apply to all future contracts between Us.
19 Headings
19.1 The headings to
these Conditions are inserted for ease of reference and shall not affect their construction.
20 Law
and Jurisdiction
20.1 This Contract shall be governed by and be construed in all respects in
accordance with English Law and all disputes or claims arising out of or relating to this Contract shall be
subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit.
SB0617
Purchasing Conditions
1 Definitions and Interpretations
1.1 In these Conditions unless the
context otherwise requires: "Conditions" means these terms and conditions and any special terms and conditions
agreed in writing between E H Smith and the Supplier; "Contract" means any contract between E H Smith and the
Supplier for the purchase of Goods and/or Services; "E H Smith" means E H Smith (Builders Merchants) Limited
Registered in England No. 800907. "Goods" means the goods (including any part or parts of them) which the Supplier
is to provide to E H Smith pursuant to the order in accordance with these Conditions; "Goods Legislation" means
any applicable statute, statutory rule, order, directive, regulation or other instrument having force of law
(including any directive or order promulgated by any competent supra-national body), all British and European
standards, UKAS (United Kingdom Accreditation Service) and all other legislation for the time being in force
relating without limitation to the manufacture (including raw materials or chemicals used in the production
process), packaging, delivery, carriage, storage, installation and use of the Goods or provision of the Services;
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of
Commerce 2010; "Order" means any order from E H Smith to the Supplier for the supply of Goods or Services in such
form as E H Smith may determine from time to time including orders made by facsimile transmission, by letter or by
email made in accordance with Condition 2.2; "Services" means the services which the Supplier is to provide to E H
Smith pursuant to the Order in accordance with these Conditions; "Specification" means E H Smith's specifications
or stipulations for the Goods and/or Services notified in writing to the Supplier; "Supplier" means the person,
firm or company to whom the Order is addressed.
1.2 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 any preceding words where a wider construction is possible.
2 Basis of
Contract
2.1 The Contract will be subject to these Conditions to the exclusion of all other
terms and conditions (including any terms or conditions which the Supplier purports to apply under any quotation,
Order acknowledgement, invoice or any other document issued by the Supplier). These conditions are in addition and
without prejudice to any rights or entitlements of E.H.Smith conferred or implied by statute, common law or
otherwise.
2.2 Any Order is an offer made by E H Smith to the Supplier and the Contract shall come into
effect upon acceptance of the Order by the Supplier. Unless previously withdrawn by E H Smith, Orders shall be
deemed accepted if not rejected by the Supplier by notice in writing within seven (7) days of their date. The
Order number must be quoted on all correspondence, all advice notes and all invoices relating to such
Order.
2.3 Only E H Smith has the authority to enter into Contracts (or request that Goods or Services
should be delivered or performed pursuant to the Contract) and no customer of E H Smith shall enter into Contracts
(or request that Goods or Services should be delivered or performed pursuant to the Contract) on behalf of E H
Smith or act as E H Smith's agent. Accordingly E H Smith shall not be liable to pay for Goods or Services which
have been ordered by or delivered at the request of E H Smith's customer direct with the Supplier, or E H Smith
may elect to pay such invoices without prejudice to its right to refuse payment of later
invoices.
3 Delivery
3.1 When Goods are delivered from within the United Kingdom,
delivery of the Goods shall take place at E H Smith's place of business, unless otherwise stated in the Order.
When Goods are delivered from outside the United Kingdom, the Goods shall be Delivered Duty Paid (Incoterms 2010)
at EH Smith's place of business, unless otherwise stated in the Order. Each delivery must be clearly marked in
accordance with the Specification and/or the Order.
3.2 Unless the context otherwise requires, any term or
expression which is defined in or given a particular meaning by the provision of Incoterms shall have the same
meaning in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions,
these Conditions shall prevail.
3.3 Time of delivery is of the essence of the Contract. E H Smith or its
customer shall be under no obligation to accept delivery of the Goods before the specified delivery time, but
reserve the right to do so.
3.4 E H Smith may cancel any Order (notwithstanding that the Supplier may have
accepted the Order) or delay the delivery of any Goods without incurring any liability at any time.
3.5 E H
Smith shall have the right to change its delivery instructions at any time.
3.6 A proof of delivery
document quoting the Order number shall accompany the Goods.
3.7 E H Smith shall not be obliged to accept
quantities of the Goods or types of the Goods which vary from those specified in the Specification or the
Order.
3.8 The Supplier shall ensure that the Goods will be properly packed and secured in such a manner as
to reach their destination undamaged and in good condition. E H Smith shall not be obliged to return to the
Supplier any packaging materials.
4 E H Smith's customers
4.1 E H Smith may from
time to time provide the Supplier with an estimated delivery schedule which sets out the anticipated requirements
of E H Smith's customers for the Goods and Services . The delivery schedules will set out the dates it is
anticipated the Goods will be required to be delivered by and the estimated quantity of Goods and are for
information purposes only and are not legally binding. E H Smith's customers may not confirm the delivery
schedules and E.H.Smith will not be liable to pay for any Goods unless the delivery in question was specifically
and individually authorised by E.H.Smith, that is, each and every "call off" must be authorised by E.H.Smith prior
to each delivery, without prejudice to the provisions of conditions 3.4 and 3.5.
4.2 Where delivery of the
Goods is to be made direct to E H Smith's customer the Supplier must deliver only the type, quality and quantity
of Goods specified in the Order and/or Specification.
5 Acceptance
5.1 E H Smith
shall not be deemed to have accepted any Goods until E H Smith (or E H Smith's customer if the Goods are delivered
direct to E H Smith's customer by the Supplier) has had a reasonable time to inspect the Goods following delivery
or after any latent defect has become apparent of at least 7 days following delivery of the Goods or completion of
the Services or 7 days of discovery of the latent defect. For the avoidance of doubt no inspection or testing by E
H Smith (or its customers) whether before or after delivery of the Goods nor the signing of any delivery note or
other document acknowledging physical receipt of any Goods shall be deemed to constitute or evidence acceptance or
approval of the Goods for the purposes of the Sale of Goods Act 1979 (as amended) nor be deemed a waiver of E H
Smith's (or its customer') rights either to cancel or return all or any part thereof where the Goods are found to
be defective or not in accordance with the Contract, Order or Specification.
5.2 The Supplier shall keep E
H Smith informed promptly of any matter of which it is or reasonably should, as supplier of the Goods, be aware
relating to the storage, transportation, handling, assembly or use of the Goods by E H Smith (including
legislation or advice from responsible or professional or legal bodies in respect of raw materials used in the
manufacture of the Goods) and the actions it has taken or proposes to take and those that E H Smith should take in
relation to such matters.
6 Title and Risk
6.1 The Goods shall be at the risk of
the Supplier until they are delivered in accordance with the Contract when, without prejudice to any right of
rejection which E H Smith may have under the Contract or by law, title to and risk in the Goods shall pass to E H
Smith, provided that if E H Smith pays for the Goods prior to delivery, title to the Goods shall pass to E H Smith
when payment is made.
7 Provision of Services
7.1 If the Contract is for or
includes Services to be performed by the Supplier then, the Supplier undertakes, represents and warrants to E H
Smith and E H Smith's customers that: (a) the Supplier shall carry out the Services strictly in accordance with
the Order and the Specification; (b) the Supplier will provide the Services with the highest level of skill, care
and diligence and in a good and workmanlike manner in accordance with the provisions of these Conditions; (c) the
Services will be performed by appropriately qualified and trained personnel with due care and diligence and to
such high standard of quality as it is reasonable for E H Smith to expect in all the circumstances; (d) the
Supplier will comply with and its personnel will comply with: (i) all Goods Legislation to the best practice in
the Supplier's relevant industry; and (ii) the safety and security standards and site procedures and codes of E H
Smith and its customers; and (iii) any reasonable instructions and guidelines issued by E H Smith from time to
time; (e) the time of performance of the Services is of the essence of the Contract.
8 Prices and
Payment
8.1 The price of the Goods and/or Services shall be in pounds sterling and shall be the
price stated in the Order or the quotation. If there is any difference in the price between the Order and
quotation then the price shall be the price in the Order. The price shall not be changed by the Supplier prior to
delivery. The price shall be inclusive of all packaging, packing, labelling, insurance, delivery costs, and all
other costs incurred by the Supplier in relation to the Goods and their delivery unless otherwise specified in the
Order.
8.2 All sums payable under the Contract are inclusive of VAT (unless otherwise stated in the Order)
and all other applicable taxes or duties payable.
8.3 The Supplier must invoice E H Smith within four days
of delivery of the Goods or completion of the performance of the Services and a statement of account must be
received within seven days of the end of the month of delivery of the Goods or completion of the performance of
the Services, otherwise payment of the Supplier's account may be deferred by E H Smith until the following payment
month without any loss of discount.
8.4 Invoices submitted before the time periods set out in Condition 8.3
above shall be deemed received on the date of delivery of the Goods or date of completion of the
Services.
8.5 Invoices shall be in such form as E H Smith specifies from time to time and shall be
addressed to E H Smith's registered office.
8.6 Unless otherwise stated in the Order, E H Smith shall pay
the price of the Goods or Services within 45 days after the end of the month of the later of: (a) receipt by E H
Smith of an invoice and statement of account issued in accordance with Condition 8.3; or (b) delivery of the Goods
or completion of the Services. No interest shall be payable by E H Smith under this Contract in any circumstances
whatsoever. E H Smith may pay sums by BACS or by cheque.
8.7 The prices charged by the Supplier to E H
Smith shall not exceed those prices charged by the Supplier to any other customer purchasing the same or similar
goods and/or services in the same or smaller quantities and E H Smith shall be entitled to any discount for prompt
payment, bulk purchase or volume of purchase customarily granted by the Supplier.
8.8 If the price is
stated in the Order to be on a "time and materials" or "cost plus" basis or similar the Supplier shall give E H
Smith access to all documents and information in the Supplier's possession or under its control to enable E H
Smith to satisfy itself that the amount charged by the Supplier is properly and correctly charged in accordance
with the Contract and in default E H Smith shall be entitled to withhold payment in whole or in part until such
default is rectified to the satisfaction of E H Smith.
8.9 If any sums are due to E H Smith from the
Supplier, then E H Smith shall be entitled to exercise the right to set-off such sums against any payments due to
the Supplier from E H Smith under or in relation to this or any other Contract. The Supplier shall not be entitled
to apply any amount due to E H Smith under the Contract in or towards payment of any sum owing by E H Smith to the
Supplier in relation to any matter whatsoever.
8.10 Any money paid by E H Smith to the Supplier in respect
of any Goods rejected under these Conditions together with any additional expenditure over and above the price
specified in the Order reasonably incurred by E H Smith in obtaining other goods in replacement of any rejected
Goods shall be paid by the Supplier to E H Smith within 7 days of the date of EH Smith's notice demanding the same
or, at EH Smith's sole option, shall be deducted from the money still to be paid by E H Smith to the
Supplier.
8.11 Should E H Smith have a bona fide dispute in respect of the whole or any part of any invoice
then E H Smith shall be entitled to withhold payment of that invoice. The Supplier and E H Smith shall co-operate
in good faith to resolve the dispute over the invoice as amicably and promptly as possible. On settlement of the
dispute over the invoice E H Smith shall make the agreed payment (if any) in accordance with these Conditions as
if the Goods were supplied or the Services were performed on the date on which the dispute over the invoice was
agreed as resolved.
9 Warranties
9.1 The Supplier undertakes, represents and
warrants to E H Smith and E H Smith's customers that the Goods and their packaging and labelling shall: (a) be
accompanied with accurate, complete and comprehensible instructions for the treatment, assembly, use and/or
storage of the Goods; (b) conform to the Specification and with any instructions of E H Smith, and shall otherwise
meet the requirements of the Order and this Contract; (c) be of satisfactory quality, free from defects in
materials and workmanship and fit for their intended purpose (whether such purpose is implied or expressly stated
in the Specification, Orders or Contract) and Section 33 of the Sale of Goods Act 1979 shall not apply; (d) be
free from design and other inherent defects (save to the extent that the Goods have been supplied in accordance
with designs of E H Smith); (e) comply with all Goods Legislation; and (f) conform strictly as to quality,
quantity and description with any samples provided by the Supplier for the purpose of supply of Goods of that
type.
9.2 The Supplier shall transfer or assign to E H Smith and E H Smith's customers or otherwise obtain
for the benefit of E H Smith and E H Smith's customers any guarantee, warranty or other confirmation of quality,
title or fitness for purpose given by any manufacturer of the Goods in respect of the Goods (or part thereof) to
the extent that the same is capable of such transfer or assignment to E H Smith or otherwise providing such
benefit for E H Smith or its customers.
9.3 If the Supplier breaches any obligation, warranty or
requirement in the Contract in respect of the Goods or Services or the Goods or any instalment of the Goods are
not delivered at the specified time or the Goods delivered are damaged then E H Smith shall be entitled at its
sole discretion without liability to the Supplier (arising out of such action) and without prejudice to any other
right or remedy E H Smith may have to take one or more of the following actions to: (a) cancel the Contract and
treat the Contract as having never been entered into by the Supplier; and/or (b) reject the relevant Goods (in
whole or in part) and any Goods already delivered which cannot be effectively and commercially used by reason of
the non delivery of any undelivered Goods; and/or (c) refuse to accept any subsequent delivery of the Goods;
and/or (d) recover from the Supplier any costs reasonably incurred by E H Smith or E H Smith's customer in
obtaining substitute goods or services from another supplier; and/or (e) require the Supplier at its sole cost to
replace, repair the Goods or carry out such work as is necessary within 14 days so that the Goods conform to the
Contract, Order and Specification; and/or (f) require the Supplier at its sole cost to re-execute the Services in
accordance with the Contract, Order and Specification within 7 days; and/or (g) treat this Contract as discharged
by the Supplier's breach and: (i) delay payment of the price for the Goods and Services until the requirements of
this Contract, Order and any Specification are entirely fulfilled, (ii) refuse to make payment of the price of the
Goods or Services; or (iii) require the repayment of any part of the price of the Goods or Services which E H
Smith has paid whether or not E H Smith has previously required the Supplier to repair the Goods, supply any
replacement Goods or re-execute the Services; and/or (h) claim such damages as may have been incurred by E H Smith
or E H Smith's customer as a result of the Supplier's breach of the Contract.
9.4 If E H Smith claims that
an Order has not been fulfilled or has been incorrectly fulfilled the Supplier shall be deemed to accept the
validity of the claim unless it serves written notice on E H Smith disputing the said claim and stating the
reasons for its dispute within 7 (seven) days of the date of the said claim.
9.5 If E H Smith exercises any
right under these Conditions E H Smith may at its absolute discretion require the Supplier to collect the relevant
Goods forthwith or return the Goods to the Supplier at the Supplier's cost.
9.6 E H Smith's rights under
these Conditions are in addition to any statutory remedies available to E H Smith.
10 Product
Recall
10.1 The Supplier shall immediately notify E H Smith in writing providing all relevant
details if it discovers that there is: (a) any defect in the Goods which have been delivered to E H Smith at any
time; or (b) any error or omission in the instructions for the use and/or assembly of the Goods; (whether or not
any such defect, error or omission represents a breach of the warranty in Condition 9.1 or any other Condition)
which causes or may cause any risk of death, injury or damage to property.
10.2 E H Smith may at its
discretion and at the Supplier's own cost: (a) recall any Goods or any other products into which the Goods have
been incorporated already sold by E H Smith to its customers (whether for a refund, credit or replacement which
shall in each case be undertaken by the Supplier at E H Smith's option); and/or (b) issue any notification whether
in writing or otherwise to its customers about the manner of use or operation of any Goods or any other products
into which the Goods have been incorporated already sold by E H Smith to its customers; in each case on the basis
of the identification whether by the Supplier, E H Smith, any of E H Smith's customers or any third party of any
defect in the relevant Goods or any error or omission in the instructions for their use or assembly (whether or
not that defect, error or omission represents a breach of the warranty in Condition 9.1 above or any other
Condition) which E H Smith reasonably concludes affects or may affect any of the Goods supplied which causes or
may cause any risk of death, injury or damage to property.
11 Indemnity
11.1 The
Supplier acknowledges that E H Smith places particular reliance upon the Contract and in addition to any other
remedy available to E H Smith, the Supplier irrevocably and unconditionally agrees to indemnify E H Smith its
employees, sub-contractors and agents (who shall have no duty to mitigate their loss) in full and on demand and
keep them so indemnified against all claims, demands, actions, proceedings and all direct and indirect damages,
losses, costs and expenses (including without limitation legal and other professional advisers' fees, economic
loss, loss of profit, future revenue, reputation, goodwill, anticipated savings) and any consequential loss made
against or incurred or suffered by any of them and whether wholly or in part resulting directly or indirectly from
the matters listed below whether or not such losses or the consequences of the matters listed below were
foreseeable at the date of the Contract: (a) any claims that the Goods or Services infringe the Intellectual
Property Rights of any third party by reason of the use, purchase or sale by E H Smith of the Goods including any
royalties being payable to any third party (save to the extent that the Goods or Services have been supplied in
accordance with the Specification or designs of E H Smith); (b) any breach of the Contract by the Supplier, its
employees, agents or sub-contractors or any act or omission by any of them including without limitation any delays
in delivery and any costs or liabilities incurred by E H Smith in having to cancel any Order as a result of any
such breach, act or omission or any other warranty or condition concerning the Goods or Services whether express
or implied by statute or otherwise; (c) any liability being incurred under the Consumer Protection Act 1987 in
respect of the Goods or as a result of any recall of any Goods already sold by E H Smith to its customers under
Condition 10 above; (d) any termination of the Contract pursuant to Condition 14.
11.2 The Supplier shall
provide all facilities, assistance and advice required by E H Smith or its insurers for the purpose of contesting
or dealing with any action, claim or matter arising out of the Supplier's performance, or purported performance
of, or failure to perform, the Contract.
12 Insurance
12.1 The Supplier shall at
its own cost effect and keep in place with reputable insurers such insurance policies as are appropriate and
adequate having regard to its obligations and liabilities under the Contract. The Supplier shall on the written
request of E H Smith from time to time provide E H Smith with reasonable details of the insurance maintained in
force in accordance with this Condition 12, and, on the renewal of each policy, the Supplier shall send a copy of
the premium receipt to E H Smith when requested to do so in writing by E H Smith. The Supplier shall do nothing to
invalidate any of the policies maintained in force in accordance with this Condition 12.
13
Intellectual Property
13.1 All materials including any Specifications supplied by E H Smith, and
any copies made by or for the Supplier shall be the property of E H Smith, shall only be used for the purposes of
this Contract, shall be treated by the Supplier as strictly confidential and shall be returned by the Supplier
immediately on request to E H Smith at the Supplier's sole risk and cost.
13.2 Any and all Intellectual
Property Rights created or acquired in the course of or as a result of any work carried out by the Supplier under
or in pursuance of the Contract, shall, from the date of their creation or acquisition by the Supplier belong
exclusively, throughout the world, to E H Smith and the Supplier undertakes that, at the request of E H Smith, it
will do all such acts and execute all such documents, at its own expense, that may be necessary under the law of
any country to ensure a complete and effective assignment to E H Smith of the full right, title and interest to
any such Intellectual Property Rights and (if applicable) their registration in the name of E H
Smith.
14 Termination
14.1 E H Smith may immediately terminate the Contract without
payment of compensation or other damages caused to the Supplier solely by such termination by giving notice in
writing to the Supplier if any one or more of the following events happens: (a) the Supplier commits a breach of
any of its obligations under these Conditions which is incapable of remedy; (b) the Supplier fails to remedy,
where it is capable of remedy, or persists in any breach of any of its obligations under these Conditions after
having been required in writing to remedy or desist from such breach within a period of 7 days; (c) the Supplier
proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an
interim order is made in relation to the Supplier under Section 252 of the Insolvency Act 1986, or any other steps
are taken or negotiations commenced by the Supplier or any of its creditors with a view to proposing any kind of
composition, compromise or arrangement involving the other party and any of its creditors; or (d) the Supplier is
deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or the Supplier
calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or the
Supplier presents, or has presented, a petition for a winding up order, or the Supplier presents, or has
presented, a petition to appoint an administrator, or any other steps are taken by the Supplier or any other
person to appoint an administrator over the Supplier, or the Supplier has an administrative receiver, or receiver
appointed over all or any part of its business, undertaking, property or assets, or the Supplier takes any steps
in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in
relation to it.
14.2 The termination of the Contract shall be without prejudice to the rights and remedies
of either party which may have accrued up to the date of termination.
15 Third
Parties
15.1 The Contract is personal to the Supplier. The Supplier shall not assign, delegate,
sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the
Contract without the prior written consent of E H Smith.
15.2 E H Smith may assign, delegate, sub-contract,
transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract at any
time without the prior written consent of the Supplier.
15.3 Subject to Condition 15.4 below, a person who
is not a party to the Contract (including any employee, officer, agent, representative or subcontractor of either
party) shall have no right, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to
enforce any term of these Conditions.
15.4 Any of E H Smith's customers who purchase the Supplier's Goods
from E H Smith or take the benefit of the Services may enforce Conditions 3.3, 4.2, 7, 9.1 and 11.1(a) in
accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999 subject to obtaining EH Smith's
prior written consent (at its absolute discretion) to enforcing the provisions.
15.5 Where a person who is
not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either
party) has a right to enforce any term of these Conditions under section 1 of the Contracts (Rights of Third
Parties) Act 1999, the parties to the Contract may vary or terminate these Conditions by agreement between them
without requiring the consent of that person and need not comply with section 2(1) of the Contracts (Rights of
Third Parties) Act 1999.
16 General
16.1 The Supplier shall keep and procure to be
kept secret and confidential all information disclosed or obtained as a result of the relationship of the parties
under the Contract (including information as to the price which E H Smith pays the Supplier for the Goods and the
existence of this Contract) and shall not use nor disclose the same save for the purposes of the proper
performance of the Contract or with the prior written consent of E H Smith.
16.2 The Supplier shall not
exercise any right of lien, general or otherwise and howsoever arising, over any Goods or any other property of E
H Smith in the Supplier's possession, in respect of any sums owed by E H Smith to the Supplier under the Contract
or otherwise.
16.3 No purported alteration or variation of these Conditions shall be effective unless it is
in writing, refers specifically to the Contract and is signed by a duly authorised representative of each of the
parties to the Contract.
16.4 The waiver by E H Smith of any breach of these Conditions shall not prevent
the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of
that or any other provision. Any waiver of any breach of these Conditions shall be in writing.
16.5 If at
any time any part of these Conditions is held to be or becomes void or otherwise unenforceable for any reason
under any applicable law, the same shall be deemed omitted from these Conditions and the validity and/or
enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired as a
result of that omission.
16.6 Any notice given under these Conditions shall be in writing and delivered by
fax, airmail or first class post to the address of the party specified in this Agreement, or such other address as
is notified to the other party from time to time.
17 Law and Jurisdiction
17.1
These Conditions and any dispute or claim arising out of or in connection with it shall be governed by, and
construed in accordance with, the laws of England and all disputes or claims arising out of or relating to these
Conditions shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably
submit.
17.2 The United Nations Convention Contracts for the International Sale of Goods 1980 shall not
apply to the Contract.
