1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions, unless expressly stated to the contrary, the following expressions shall have the following meanings:
Business Day - a day other than a Saturday or Sunday or public holiday in England and Wales;
Confidential Information - of a party shall mean any information relating to a party’s (or any of its associated companies’) business, affairs, finances, customers, clients, or suppliers, including any know-how which is not in the public domain or already in the possession of the receiving party;
Contract - each agreement for the sale of Products, including the Price Proposal and these terms and conditions;
Customer - the person purchasing the Products under the Contract;
Customer Branding - any branding or design provided by the Customer to SMI in connection with the Contract including without limitation any logos provided by the Customer;
Customer Materials - any materials provided by the Customer to SMI in connection with the Contract including without limitation any Customer Branding;
Data Protection Legislation - any applicable data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the UK General Data Protection Regulation as defined in the Data Protection Act 2018; Delivery has the meaning given to that term in clause 4.1;
Insolvency Event any event referred to in clause 10.1.2;
Intellectual Property Rights - means all patents, know-how, business name, copyrights, trade or service marks, design rights, and all other intellectual property rights of any kind, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Price Proposal - has the meaning given to that term in clause 2.1;
Products the products described in the Contract; and
SMI - SMI Int Group Limited (registered no 07644080) whose registered office is at Vision House, Bedford Road, Petersfield, Hampshire, GU32 3QB.
1.2 References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision.
1.3 The headings in these terms and conditions are for ease of reference only and shall not in any way affect their construction or interpretation.
1.4 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
1.5 References to any party shall include its personal representatives.
1.6 The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
2. PRICE PROPOSALS
2.1 On receipt of a request to purchase Products, SMI may submit to the Customer a price proposal for the sale of the requested Products (“Price Proposal”). The Customer must provide SMI with all information reasonably required in order to prepare the Price Proposal.
2.2 The Customer shall notify SMI in writing if it accepts the Price Proposal, at which point and on which date the Contract shall come into existence.
SMI may amend or withdraw a Price Proposal at any time until it receives written notice of the Customer’s acceptance.
2.3 These terms and conditions, together with the relevant Price Proposal and any others agreed in writing as applicable, shall form the Contract between SMI and the Customer for the sale and purchase of the Products to the exclusion of any other terms and conditions (including without limitation any other terms and conditions that the Customer seeks to impose, or incorporate or which are implied by law, trade custom, practice or course of dealing). In the event of an inconsistency or conflict between these terms and conditions and any other terms and conditions which the parties have agreed in writing are applicable, these terms and conditions shall prevail unless otherwise agreed by the parties in writing.
2.4 SMI may amend these terms and conditions from time to time at its sole discretion.
3. PRICE AND PAYMENT
3.1 The price of the Products shall be as set out in the Price Proposal. SMI reserves the right to increase the prices of the Products at its sole discretion.
3.2 The price and other sums payable shall be exclusive of any applicable VAT or other taxes and duties, which shall be payable in addition.
3.3 Unless otherwise stated in a Price Proposal, delivery charges shall be levied in addition to the price.
3.4 If SMI has agreed a fixed pricing arrangement with Customer, such Fixed Fee shall only apply for the duration set out in the Order Form (“Fixed Fee Period”). On expiry of the Fixed Fee Period SMI may, at its sole discretion, either (i) extend the Fixed Fee for a further Fixed Fee Period, or (ii) move the Customer to SMI’s standard pricing for its Products as it sees fit.
3.5 Payment shall be due without any set off, withholding, deduction, abatement or counter-claim no later than 30 days from the end of the month stated on the invoice (the “Credit Period”).
3.6 SMI may review the Credit Period assigned to the Customer from time to time at its sole discretion. SMI shall be entitled to revise the same as it may in its absolute discretion decide (including removal altogether forthwith). If the Credit Period assigned to the Customer is removed at any such review SMI shall notify the Customer in writing accordingly and such removal shall apply: (a) with effect from deemed receipt of such notice in accordance with clause 6 and (b) to any and all unpaid invoices issued to the Customer by SMI which are as at the date of deemed receipt of such notice (provided that interest for late payment may only be charged with effect from the date of deemed receipt of SMI’s notice to the Customer that the Credit Period is removed), as well as to any invoices issued by SMI to the Customer from and including the date of deemed receipt of such notice.
3.7 For the avoidance of doubt, time of payment of any invoices issued by SMI to the Customer shall be of the essence. A failure by the Customer to pay any invoice issued by SMI by the date on which payment is due may constitute a material breach of this Contract, and SMI shall be entitled to terminated the Contract in accordance with clause 10.1.
3.8 Notwithstanding clauses 3.5 and 3.6 or any other arrangements for provision of credit which SMI may have agreed with the Customer in respect of the Contract, the whole price of all Products bought or agreed to be bought by the Customer shall be immediately payable on demand upon the occurrence of an Insolvency Event.
3.9 In the event that any sums owed to a SMI under a Contract remains outstanding after the due date for payment, SMI shall be entitled to charge interest on the overdue amount from the due date to until payment of the overdue sum at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
4. DELIVERY OF PRODUCTS
4.1 Delivery of the Products shall take place when they are received by or on behalf of the Customer at the Customer’s nominated delivery address (as agreed between the parties in writing) (“Delivery”).
4.2 Times for delivery or performance by SMI are estimates only and time shall not be of the essence.
4.3 Delivery may take place by way of instalments in such quantities as SMI may reasonably decide. Instalments shall be separate obligations and no breach in respect of one or more of them shall entitle the Customer to cancel any subsequent instalment or repudiate the Contract as a whole.
4.4 Notwithstanding any other provision of the Contract, in the event of non-availability of any Products ordered, SMI may deliver a reasonable substitute. Substitution may affect the price payable by the Customer. SMI shall notify the Customer of any substitution and any resultant change in the price payable by the Customer.
4.5 SMI shall be deemed to have accepted Products 2 Business Days after Delivery. After acceptance the Customer shall not be entitled to reject Products which are not in accordance with the Contract.
5. RISK AND PROPERTY
5.1 Risk of loss or damage to the Products shall pass to the Customer at the time of Delivery of the Products.
5.2 Title to the Products, regardless of Delivery, shall not pass to the Customer until the Customer has paid SMI in full for those Products and VAT thereon, and all other sums due from the Customer to SMI at that time. SMI may attribute money received from the Customer as being payment for any Products as SMI thinks fit, regardless of the circumstances.
5.3 Until such time as the title in the Products has passed to the Customer under Clause 5.2, the Customer shall:
5.3.1 store and mark it in such a way that it is readily identifiable as SMI’s property, and shall not mix it with any other goods or equipment;
5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
5.3.3 maintain the Products in a satisfactory condition, and keep them insured against all risks for their full price from the date of Delivery;
5.3.4 not pledge or allow any encumbrance, lien, charge or other interest to arise or be created over the Products; and
5.3.5 not dispose of or deal with the Products or any documents of title relating to it or any interest in it, except that the Customer may, subject to clause 5.3.3, on its own account use the Products in the ordinary course of its business operations, provided that the Customer’s right to use the Products shall automatically cease if the Customer is subject to an Insolvency Event.
5.4 If any of the following occur:
5.4.1 payment of an invoice becomes overdue by the Customer;
5.4.2 the Customer is in breach of any of its obligations under a Contract or any other agreement between SMI and the Customer;
5.4.3 the Customer exercises any right to terminate a Contract or any other agreement between SMI and the Customer; or
5.4.5 if the Customer is subject to an Insolvency Event or SMI reasonably expects that the Customer will be subject to an Insolvency Event, then in any such case:
5.4.5 SMI may by written notice terminate the Customer’s right (if still subsisting) to use the Products; and/or
5.4.6 Without prejudice to any other rights or remedies available to SMI, SMI shall be entitled upon demand to the immediate return of all the Products where title has not passed to the Customer in accordance with clause 5.2, and the Customer irrevocably authorises SMI to enter into any place where the Products and any documentation are stored to recover such Products and documentation. The Customer shall take all reasonable steps to help SMI recover the Products. Recovery by SMI of the Products shall not cancel the Customer’s liability to pay the whole or balance of the price for the Products.
6. QUALITY
6.1 SMI warrants that the Products will materially conform to the description of the Products in the Contract or otherwise provided in writing by SMI to the Customer.
6.2 If any of the Products do not conform to the warranty in clause 6.1 SMI will, at its option, repair or replace those Products or make, so far as is fair, a refund of all or a part of the price. If SMI complies with this obligation, it shall have no further liability in respect of, or arising from, such non-conformity. Any repaired or replaced Products shall be governed by the terms of the Contract.
6.3 Except as expressly stated in the Contract, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise relating to satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
7. CUSTOMER OBLIGATIONS
7.1 The parties have determined that, for the purposes of Data Protection Legislation, both parties shall act as controller. Should SMI be required to act as processor on behalf of the Customer under the Contract for any reason, the parties shall then enter into a data processing agreement to be agreed between the parties in good faith. The Customer shall assist SMI in complying with all applicable requirements of the Data Protection Legislation as and when required by SMI.
7.2 The Customer is responsible for using the Products in accordance with instructions supplied by SMI and/or the manufacturer of the Products and SMI shall not be responsible for any damage, loss or claims arising from any failure by the Customer to comply with such instructions.
7.3 If the Customer becomes aware that any third party has made or is likely to make any claim in respect of any Products (including, without limitation, as to defects in them or rights infringed by them) it shall immediately inform SMI in writing and shall afford to SMI reasonable assistance (including, without limitation, permitting SMI to have conduct of any proceedings) which SMI may reasonably require to enforce its rights and defend such claim.
7.4 Without prejudice to any duty of the Customer at common law, SMI shall be entitled to require the Customer to take such steps as SMI may reasonably require to mitigate or reduce any losses or claims that may arise in relation to the Contract.
8. CUSTOMER BRANDING AND INTELLECTUAL PROPERTY
8.1 If the Customer requires that the Products incorporate any Customer Branding, SMI shall provide the Customer with a sample of the Products incorporating such Customer Branding and the Customer shall notify SMI in writing of its approval of such samples. The Customer’s approval shall not be unreasonably withheld or delayed and shall be irrevocable once notified to SMI.
8.2 The Customer hereby grants SMI a non-exclusive royalty free licence to use the Customer Materials for the purpose of providing the Products and as otherwise required by SMI to comply with its other obligations under the Contract. The Customer warrants that the use of Customer Materials by SMI shall not infringe the rights of any third party including without limitation any third party Intellectual Property Rights.
8.3 Except for any Intellectual Property Rights arising in the Customer Materials, all Intellectual Property Rights in the Products and their specification, design, packaging, labelling and other materials supplied with or in connection with any of the Products shall as between the parties remain at all times vested in SMI. No Intellectual Property Rights of SMI are transferred to the Customer and no licences to use any Intellectual Property Rights of SMI are granted to the Customer. .
8.4 The Customer shall not remove, obscure or otherwise alter or interfere with any of the logos, marks or branding appearing on any of the Products or their packaging.
9. INDEMNITY
The Customer hereby indemnifies and shall keep SMI indemnified against all losses suffered or incurred by SMI in respect of all and any demands, liabilities, expenses, claims (including but not limited to any settlements of claims whether before or after the issue of proceedings), judgment sums (including but not limited to sums arising from consent orders or judgments), damages, direct, indirect or consequential losses, costs (including but not limited to legal and other professional costs) suffered or incurred by SMI arising out of or in connection with any claim made against SMI for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with SMI’s use of the Customer Materials.
10. TERMINATION
10.1 Without affecting any other rights and remedies it might have, SMI shall be entitled to terminate the Contract with immediate effect and/or suspend its performance at any time without liability to the Customer by giving written notice to the Customer at any time if the Customer:
10.1.1 is in material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of Customer being notified to do so;
10.1.2 has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up (other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation), dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the relevant party is incorporated, resident or carries on business;
10.1.3 the Customer’s financial position deteriorates so far that SMI considers in its sole opinion that the Customer’s ability to give effect to the terms of the Contract is jeopardised; or
10.1.4 if any sums due from the Customer to SMI remain outstanding after the due date for payment.
10.2 Any termination however caused shall not affect any right or liabilities which have accrued prior to the time of termination and the continuance in force of any provision of the Contract which expressly or by implication is intended to come into or continue in force after termination.
11. LIMITATION OF LIABILITY
11.1 Subject to clause 11.5, SMI’s liability to the Customer however arising out of or in connection with a Contract and/or the sale of the Products shall be limited in respect of all claims in aggregate to a sum equal to the total sums paid (exclusive of VAT) by the Customer for the Products under the Contract giving rise to the claims.
11.2 Notwithstanding any other provision of the Contract, but subject to clause 5, SMI shall have no liability however arising out of or in connection with the Contract and/or the sale of the Products for any:
11.2.1 direct or indirect loss of or damage to:
(a) profit;
(b) revenue;
(c) business;
(d) contract;
(e) opportunities;
(f) anticipated savings;
(g) data;
(h) goodwill;
(i) reputation;
(j) use;
11.2.2 indirect or consequential loss or damage; or
11.2.3 claim arising out of a claim against the Customer by a third party.
11.3 The parties agree that each of the sub-clauses in clause 11.2 and each of the sub-paragraphs 11.2.1(a) to 11.2.1(j) in sub-clause 11.2.1 constitute separate terms and the introductory wording of clause 11.2 shall be applied to each of them separately. If there is any claim or finding that any such individual sub-clause or sub-paragraph is unenforceable for any reason, such unenforceability shall not affect any other provision within clause 11.2 or otherwise.
11.4 The term “however arising” when used or referred to in clause 11 covers all causes and actions giving rise to the liability of SMI arising out of or in connection with the Contract and/or the Products including (i) whether arising by reason of any misrepresentation (whether made prior to and/or in the Contract) negligence, breach of statutory duty, other tort, repudiation, renunciation or other breach of contract, restitution or otherwise; (ii) whether arising under any indemnity; or (iii) whether caused by any total or partial failure or delay in supply of SMI or defective Products
11.5 The exclusions and limitations of liability contained in these terms and conditions and in the Contract shall apply regardless of whether the loss or damage was foreseeable or whether the Customer notifies SMI of the possibility of any greater loss or damage, but shall not apply to the extent prohibited or limited by law and, in particular, nothing in the Contract shall affect liability for death or personal injury caused by negligence or for fraudulent misrepresentation or other fraud.
11.6 SMI shall not be liable to the Customer for any claim unless made with reasonable details in writing to SMI without unreasonable delay and in any event no later than 3 months, or such longer period as may be reasonable in the circumstances, after the date the claimable event first came (or ought reasonably to have come) to the Customer’s notice.
12. CONFIDENTIALITY
Neither party shall without the prior written consent of the other party (during and after termination of any Contract) use (other than in the performance of this Contract) or disclose to any other person any Confidential Information of the other party, except that any obligations contained in this clause shall not prevent any disclosure of Confidential Information which is required by law, court order or any legal or regulatory authority, which is required to comply with the rules of any relevant stock exchange, or disclosure to a party’s professional advisors, acting in their capacity as such.
13. FORCE MAJEURE
SMI shall have the right to suspend delivery and/or cancel or reduce the volume of the Products to be supplied as SMI shall see fit and shall not be liable in any way for loss, damage or expense arising directly or indirectly from this, or any other failure or delay in SMI’s performance of the Contract, to the extent that this has been caused by any circumstance beyond SMI’s reasonable control, including war (or other action of military forces), terrorism, riot, civil commotion, sabotage, vandalism, accident, breakdown or damage to machinery or equipment, acts of God, fire, flood, severe weather conditions, extreme traffic congestion, strike, lock-out or other industrial disputes (whether or not involving employees of SMI) or failure or delays by SMI’s suppliers.
14. ENTIRE AGREEMENT
14.1 The Contract constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or understanding between the parties with the respect to the arrangement contemplated by or referred to in the Contract.
14.2 The Customer acknowledges that, in entering into each Contract, it does not rely on, and shall have no remedy in respect of, any representation, whether negligent or not, of any person (whether party to the Contract or not) which is not expressly set out in the Contract, and the only remedy available to it for breach of any statement, representation or other term that is expressly set out in the Contract shall be for breach of contract.
14.3 Nothing in this clause 14 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
15. GENERAL
15.1 SMI may assign, novate, charge or hold on trust for another any of its interest under the Contract in whole or in part or sub-contract all or any of its obligations under the Contract. The Customer shall not be entitled to assign, novate, charge or hold on trust for another any of its interest under the Contract in whole or in part or sub-contract all or any of its obligations under the Contract without the prior written consent of SMI (such consent not to be unreasonably withheld or delayed).
15.2 Except as set out in clause 3, no other variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
15.3 Save as expressly provided in these terms and conditions, the rights and remedies provided by Contract are cumulative and (subject as otherwise provided in these terms and conditions) are not exclusive of any right or remedy provided by law. No exercise by a party of any one right or remedy shall (save unless expressly provided otherwise) operate so as to hinder or prevent the exercise by it of any other right or remedy.
15.4 Any failure to exercise or delay by SMI in exercising a right or remedy arising in connection with the Contract or by law shall not constitute a waiver of such right or remedy or of any other rights or remedies. No waiver shall be effective unless in writing and signed by SMI or on its behalf by a duly authorised representative. A waiver of a right or remedy on one occasion shall not constitute a waiver of the same right or remedy in the future.
15.5 If any provision of these terms and conditions or the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions or the Contract and the remainder of the provision in question shall not be affected thereby.
15.6 Any notice given under the Contract shall be in writing, in English, and may be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to the address as set out in the Contract or such other address as a party may designate by written notice. A notice is deemed to be received when left at the recipient’s address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting. If such deemed receipt is not within business hours (being between 9.00 am and 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to be received when business hours next commence.
15.7 No provision of a Contract shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
16. GOVERNING LAW AND JURISDICTION
16.1 These terms and conditions and the Contract are governed by and shall be construed in accordance with English law. The parties irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales.