Terms and Conditions
Conditions of sale
1.1 In these Conditions
“BUYER” means the person who accepts a quotation of the Seller for the sale of Goods or whose order for the Goods is accepted by the Seller.
“GOODS” means the goods (including any instalment of the goods or any goods or any part for them) which the seller is to supply in accordance with these Conditions.
“SELLER” means Smithers Oasis UK Ltd registered in England under number 1542218.
“CONDITIONS” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“CONTRACT” means the contract for the purchase and sale of the Goods.
“WRITING” includes Telex, Cable, Facsimile Transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Basis of the Sale:
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller, subject in either case to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
3. Orders and Specifications:
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Sellers authorised representative.
3.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Sellers quotation if accepted by the Buyer or the Buyers order if accepted by the Seller.
3.3 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs including the cost of all labour and materials used, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the Goods:
4.1 The price of the goods shall be the price listed in the Sellers published price list current at the day of delivery.
4.2 The Seller reserves the right, by giving notice to the Buyer which shall not by reason of the receipt of such notice be entitled to repudiate the Contract at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller such as, for example, foreign exchange fluctuations, increases in the costs of labour, materials or other costs of manufacture, any change in delivery date, quantities or specifications for the Goods which requested by the Buyer, or any delay caused by the instruction of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. Terms of Payment:
5.1 Subject to any special terms agreed in Writing by the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after 14 days after the Seller has notified the Buyer that the Goods are ready for collection or as the case may be the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other rights or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 Cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 Appropriate any payment made by the Buyer to such of the Goods or the Goods supplied under any other contract between the Buyer and the Seller as the Seller may think fit notwithstanding any purported appropriation by the Buyer; and
5.3.3 Charge the Buyer interest both before and after any judgement on the amount unpaid, at the rate of 18 per cent per annum until payment in full is made a part of a month being treated as a full month for the purpose of calculating interest.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be the essence unless previously agreed by the Seller in Writing.
6.3 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery otherwise than by reason of any cause beyond the Buyers reasonable control or by reason of the Seller’s fault then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.3.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs including insurance of storage; or
6.3.2 Sell the Goods at the best price readily obtainable and after deducting all reasonable storages and selling expenses account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.4 Returns may be made with the Seller’s prior consent. The extent of credit (if any) given by the Seller for returns shall be at the Seller’s discretion.
7. Risk and Property:
7.1 Risk of damage to loss of the Goods shall pass to the Buyer:
7.1.1 In case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 In case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Sellers fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
7.4 Until such time as the property in the Goods passes to the Buyer and provided the Goods are still in existence and have not been resold, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
8 Warranties and Liability:
8.1 Subject to the Conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship.
8.2 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale as defined by the Sale of Goods Act 1979, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods shall be notified to the Seller within 7 days from the date of delivery.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods is notified to the Seller, the Seller shall be entitled to replace the Goods free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods. The Seller shall have no further liability to the Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, it’s employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.6 The Seller shall not be liable to the Buyer or be deemed to be in breech of Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s control.
9. Insolvency of the Buyer:
9.1 This clause applies if:
9.1.1 The Buyer makes any voluntary arrangement with it’s creditors or becomes subject to an administration order or being an individual of firm becomes bankrupt or being a company goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction) ;or
9.1.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 The Seller reasonable apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies then, without prejudice to any other rights or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due any payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party as its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.4 The Contract shall be governed by the Laws of England.