1.1 Definitions. In these Conditions, the following definitions apply:
means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
means the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
means the contract between SMC and the Customer for the sale and purchase of the Goods in accordance with these Conditions
means the person or firm who purchases the Goods from SMC.
"Force Majeure Event"
has the meaning given in clause 10.
means the goods (or any part of them) set out in the Order.
means the Customer's order for the Goods, as set out in the Customer's purchase order form.
means any SMC product code and description in SMC’s Order Acknowledgement.
means Smith & McLaurin Limited, a company incorporated in Scotland (registered number SC229817) and having it registered office at Cartside Mill, Kilbarchan Road, Kilbarchan, Johnstone, Renfrewshire, Scotland PA10 2AF.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order will be accepted on the basis that the Customer has fully tested that the Specification of the Goods is suitable for both their and their customer’s purposes, as supported by test results or alternatively a disclaimer absolving SMC of any liability.
2.4 The Order shall only be deemed to be accepted when SMC issues a written acknowledgement of the Order. The Customer shall have 2 Business Days from the date on which the written acknowledgement is issued to object to the Terms and Conditions and at the expiry of this period the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of SMC which is not set out in the Contract.
3.1 The Goods are described in the Specification.
3.2 SMC reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4.1 SMC shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 SMC shall deliver the Goods to the location set out in SMC’s Order Acknowledgement or such other location as the parties may agree ("Delivery Location") at any time after SMC notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.5 If SMC fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. SMC shall have no liability for any delay or failure to deliver the Goods to the extent that such failure or delay is caused by a Force Majeure Event or the Customer's failure to provide SMC with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take or accept delivery of the Goods within three Business Days of SMC notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or SMC's failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which SMC notified the Customer that the Goods were ready; and
4.6.2 SMC shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which SMC notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, SMC may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Customer shall not be entitled to reject the Goods if SMC delivers up to and including 10% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.9 SMC may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 SMC warrants that on delivery the Goods shall:
5.1.1 conform in all material respects with the Specification; and
5.1.2 be free from material defects in material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to SMC within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1 not exceeding 5 days in respect of matters that ought to have been apparent on a normal visual inspection and not exceeding 30 days in respect of latent defects;
5.2.2 SMC is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by SMC) returns such Goods to SMC's place of business at the Customer's cost,
SMC shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 SMC shall not be liable for Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow SMC's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of SMC following specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of SMC;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, or
5.3.7 where the Goods are manufactured in accordance with a specification supplied by or agreed with the Customer and the Customer has had an opportunity to inspect or sample the Goods prior to delivery and the Goods delivered correspond with such sample.
5.4 Except as provided in this clause 5, SMC shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by SMC.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until:
6.2.1 SMC receives payment in full (in cleared funds) for the Goods and any other goods that SMC has supplied to the Customer in respect of which payment has become due; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as SMC's property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify SMC immediately if it becomes subject to any of the events listed in clause8.1; and
6.3.5 give SMC such information relating to the Goods as SMC may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before SMC receives payment for the Goods, in which event:-
6.4.1 it does so as principal and not as SMC’s agent; and
6.4.2 title to the Goods shall pass from SMC to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy SMC may have:
6.5.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 SMC may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, and shall be invoiced on or at any time after completion of the delivery.
7.2 SMC may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond SMC's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give SMC adequate or accurate information or instructions.
7.3 The price of the Goods is inclusive of the cost and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax ("VAT") which shall be payable in addition.
7.5 The Customer shall pay SMC’s invoice for the Goods in full and in cleared funds within 30 days of the date of the invoice, unless a different agreement with the Customer has been agreed in writing. Time of payment is of the essence.
7.6 If the Customer fails to make any payment due to SMC under the Contract, The Late Payment of Commercial Debts (Interest) Act 1998 shall apply.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). SMC may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by SMC to the Customer.
8. Termination and suspension
8.1 If the Customer becomes subject to any event relating to non-payment of debt, agreements with creditors, winding up notice, insolvent or solvent reconstruction, administration or intention to appoint an administrator, receivership or intention to appoint a receiver or deteriorating financial position, SMC may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2 Without limiting its other rights or remedies, SMC may suspend provision of the Goods under the Contract or any other contract between the Customer and SMC if the Customer becomes subject to any of the events listed in clause 8.1, or SMC reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 On termination of the Contract for any reason the Customer shall immediately pay to SMC all of SMC's outstanding unpaid invoices and interest.
8.4 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. Limitation of liability
9.1 The Customer is responsible for ensuring that the product has been fully tested and approved by their customer for both functionality and method of application of the product and SMC will not accept any liability for any failure arising due to inadequacy in this area. Alternatively the Customer may give SMC a disclaimer absolving SMC of any liability.
9.2 SMC shall under no circumstances be liable to the Customer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2 SMC's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
9.3 Nothing in this clause shall limit or exclude SMC’s liability for any matter in respect of which it would be unlawful to exclude or restrict liability.
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A "Force Majeure Event" means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's) failure of energy sources or transport network, malicious damage, breakdown of plant or machinery, collapse of building structures, or default of suppliers or subcontractors.
11.1 Assignation and other dealings.
11.1.1 SMC may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of SMC.
11.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. .
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by a director of SMC.
11.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of Scotland.
11.8 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).