Terms & Conditions

1. GENERAL

1.1 These Conditions shall govern all transactions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document) into which Smart Merchants Ltd (“Smart”) enters  with its Customers. For the purposes of these Conditions: “Customer” shall mean the purchaser of Goods from, and any other party to any quotation, offer, order or contract with or by, Smart; “Goods” shall mean any goods agreed to be supplied to the Customer by Smart; and “Contract” shall mean any contract between Smart and the Customer for the sale and purchase of the Goods, incorporating these Conditions.

1.2 These Conditions apply to all Smart’s sales and any variations to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Smart.

2. VALIDITY

2.1 Each order for Goods by the Customer from Smart shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions.

2.2 No order placed by the Customer shall be deemed to be accepted by Smart until a written acknowledgement of order is issued by Smart or (if earlier) Smart delivers the Goods to the Customer.

2.3 Smart reserves the right to refuse the Customer’s acceptance of a quotation unless such a quotation is stated to be open for a specific period and is not withdrawn in such period. No binding contract shall be created by the acceptance by the Customer of Smart’s quotation until such notice of acceptance of the offer has been given in writing which shall have been signed by Smart’s duly authorised representative or Smart has indicated its acceptance of the offer by making delivery or part delivery of the Goods.

3. PAYMENT

3.1 Unless otherwise agreed in writing by Smart, Smart shall be entitled to invoice the Customer for the price of the Goods on or at any time after the Goods have been ordered.

3.2 Unless otherwise agreed in writing by Smart, the Customer shall pay the price of the Goods on the dates set out below (the “Due Date”):

3.2.1 if the Customer has a credit account, payment shall be due in full without any deduction whether by way of retention or set-off, counterclaim, discount, abatement or otherwise not later than the end of the month following that in which the goods were delivered (or deemed to be delivered) or on earlier demand by Smart;

3.2.2 if the Customer does not have a credit account, payment shall be due in full without any deduction whether by way of retention or set-off, counterclaim, discount, abatement or otherwise not later than the date of invoice.

3.3 The time of payment of the price shall be of the essence of the contract between Smart and the Customer.

3.4 If the Customer fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to Smart, Smart shall be entitled to:

3.4.1 Cancel the contract or suspend any further deliveries to the Customer;

3.4.2 Refuse credit at any time and demand immediate payment of all monies outstanding.

3.4.3 We understand and will exercise our statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if payment is not received in accordance with our payment terms.

3.4.4 Unless otherwise agreed payment shall be made within thirty days from the date of invoice.

3.4.5 Late/non-payment of the agreed terms will result in your account being sent to our debt recovery agents, and cancellation of your account with us, except for emergencies and duty of care cases. You will become liable for any and all costs incurred once your debt has been sent to our Debt collection agents.

3.4.6 The Company reserves the right to allocate 5% interest above the bank of England base rate on all late accounts

3.5 No payment shall be deemed to have been received until Smart has received cleared funds.

3.6 No settlement discount is allowed in respect of any payment made unless otherwise agreed in writing by a duly authorised representative of Smart.

4. PRICES

4.1 All Goods are sold subject to the prices and any relevant discounts ruling at the time of despatch. Smart’s prices, discount rates and conditions of sale may be altered by Smart at any time without notice. All prices and discounts are calculated upon a whole order basis. If, when a Customer places an order, the Customer selects only certain items or reduced quantities are specified, Smart reserves the right to modify the prices and discounts at which such orders are accepted.

4.2 All prices are subject to the addition of Value Added Tax at the appropriate rate.

4.3 Where Goods are specially ordered from manufacturers, and a carriage charge is made to Smart in respect of those Goods, Smart reserves the right to recover this charge from the Customer.

4.4 Smart may impose additional charges in respect of packaging it uses for transportation and delivery of the Goods. Crates, drums, cases, pallets or other returnable packaging charged to the Customer will be credited in full if returned to Smart’s despatching depot in good condition carriage paid within 14 days from the date of invoice.

5. CREDIT

Any contract between Smart and a Customer shall be subject to Smart being satisfied in its absolute discretion as to the credit worthiness of the Customer. Without prejudice to the generality of this clause, Smart may in its absolute discretion at any time refrain from despatching Goods until such time as the Customer tenders the purchase money in a form satisfactory to Smart.

6. DELIVERY

6.1 Delivery dates are given in good faith by Smart to indicate estimated delivery times only and shall not amount to any contractual obligation to deliver at the time stated. If no dates or times are given, delivery shall be within a reasonable time. No liability for direct or indirect loss or damage arising from delay in delivery will be accepted by Smart.

6.2 If Smart does not receive sufficient forwarding instructions within 14 days of notification that the Goods are ready for despatch, the Customer will either take immediate delivery or arrange for immediate storage. Otherwise, Smart shall be entitled to arrange storage on the Customer’s behalf and

at the Customer’s risk, either at Smart’s own warehouse or elsewhere (making a charge of 1.5% of the invoice value of the Goods per month). Smart shall also be entitled to payment as if the Goods had been duly delivered. All charges Incurred by Smart for storage or insurance will be payable by the Customer Smart normally makes no charge for delivery from its own depot within its van delivery area during its usual delivery hours (which are 8.00 am to 5.00 pm Monday to Friday excluding public holidays). However, Smart reserves the right to charge carriage on deliveries outside its usual delivery area or hours.

7. ACCEPTANCE

Unless the Customer gives Smart written notice within three working days of the date of delivery that the Goods are not in conformity with the contract, the Customer is deemed to have accepted the Goods.

8. RISK AND TITLE

The risk in the goods shall pass from the seller to the buyer upon delivery of such goods to the buyer. However, notwithstanding delivery and the passing of risk in the goods, title and property in the goods, including full legal and beneficial ownership, shall not pass to the buyer until the seller has received in cash or cleared funds payment in full for all goods delivered to the buyer under this and all other contracts between the seller and the buyer for which payment of the full price of the goods thereunder has not been paid. Payment of the full price of the goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer under which the goods were delivered.

9. QUALITY

Smart gives no guarantee or warranty in respect of the Goods supplied by Smart in addition to that given by the manufacturer of the Goods, and accepts no liability and gives no warranty whether express or implied in relation to defects in such Goods. Without prejudice to the generality of this clause, Smart does not accept any liability or give any warranties, representations, conditions or terms in respect of fitness for purpose, quality or merchantability of such goods, whether express or implied, statutory or otherwise. Smart shall in no way be liable for any direct or indirect damage, loss or expense arising from any defect or inefficiency caused by the manner in which the Goods are used by the Customer.

10. DESCRIPTIONS, SPECIFICATIONS, WEIGHTS, DIMENSIONS & DRAWINGS

All descriptions, specifications, weights, dimensions and drawings issued by Smart are approximate only and are intended only to present to intending customers a general description of the Goods to which they refer and will not form part of the contract.

11. LIMITATION OF LIABILITY

11.1 Subject to clauses 9 and 10 above, the following provisions set out the entire financial liability of Smart (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

11.1.1 Any breach of these Conditions; and

11.1.2 Any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.

11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

11.3 Nothing in these Conditions excludes or limits the liability of Smart for death or personal injury caused by Smart’s negligence.

11.4 Subject to clauses 11.1 and 11.2:

11.4.1 Smart’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance of this Contract shall be limited to the contract price; and

11.4.2 Smart shall not be liable to the Customer for any indirect or consequential loss or damage, costs or expenses which arise out of or in connection with the Contract.

12. DAMAGE IN TRANSIT AND SHORTAGES

12.1 Smart will, when the price quoted includes delivery, repair or replace free of charge Goods damaged in transit provided that Smart and the carrier (if any) receive written notification of such damage within three working days of delivery. Goods received in a damaged or unsatisfactory condition must be signed for as such by the Customer.

12.2 On receipt, the Goods should be checked by the Customer with the advice note enclosed with the Goods. Shortage claims will only be considered if Smart and the carrier (if any) receive written notification of such shortage within three working days of delivery, failing which no liability will be admitted. The packing and contents should be retained by the Customer for inspection.

13. RETURNS

13.1 In no circumstances may Goods supplied be returned without Smart’s prior written consent (which will be issued by Smart in the form of a collection note) and the receipt of the Customer’s advice note stating the reason for the return and the date and number of Smart’s invoice. All Goods returned must be securely packed and, unless Smart arranges collection, consigned carriage paid by the Customer. If Smart collects, Smart reserves the right to make a handling charge. The issue of Smart’s collection note to the Customer will not bind or oblige Smart to issue any credit to the Customer in respect of the Goods.

13.2 Any Goods which have been supplied to special requirements cannot be accepted by Smart for credit under any circumstances.

13.3 For all returns other than those referred to in clause 13.2 above, Smart reserves the right to impose a handling charge (equal to 25 per cent of the invoice value of the Goods returned) on the Customer.

14. TERMINATION

Smart may, without prejudice to its other rights and remedies, terminate the Contract or any unfulfilled part of it or withhold further deliveries or make partial deliveries if:

14.1 The Customer fails to make payment on the due date under this or any other contract with Smart;

14.2 The Customer purports to cancel or suspend, or commit any breach of, this or any other contract between the Customer and Smart;

14.3 the Customer becomes insolvent or makes any composition with its creditors or has a receiver appointed of all or any part of its undertaking or assets or goes into liquidation (save for the purposes of amalgamation or reconstruction), and Smart shall be entitled to recover from the Customer all of its loss including any loss of profit or loss of re-sale.

15. GOVERNING LAW

These Conditions are subject to and shall be construed in accordance with English law and the Courts of England shall have exclusive jurisdiction to settle any dispute arising from or connected with these Conditions.

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