Terms & Conditions
CONDITIONS OF SALE V7.1
Smart H &S Ltd (hereinafter referred .to as ‘The Company’) Registered Office: 9 Whistley Close, Bracknell, RG12 9LQ Company Registration No 06964079
All Quotations or Tenders given, and all orders received and accepted are executed on the basis that the purchaser (‘the Purchaser”) is bound by these conditions of sale (the “Terms and Conditions). Where there is any inconsistency between these Conditions of sale and any conditions which the purchaser seeks to impose these conditions of sale shall prevail. Where orders specify delivery by instalments, each such instalment shall be deemed to be a separate contract. Acceptance of any goods supplied by the Company indicates an acceptance of these conditions.
a) The Company reserves the right to refuse the purchasers acceptance of a Quotation given by the Company unless such Quotation is stated to be open for a specific period and is accepted within such period before being withdrawn. In the event of the receipt by the Company of an order from the purchaser, execution of the order is contingent upon availability of goods and will not be binding on the Company.
b) Once an order has been placed by a Purchaser following on from the issue of a Quotation, no orders to the Company may be cancelled.
a) Unless otherwise agreed in writing all orders are executed subject to prices and relevant discounts ruling at the date of despatch and any price list of the Company whether published or not shall not affect the right of the Company to charge for goods in accordance with this clause. All prices are subject to the addition of Value Added Tax at the appropriate rate and all quoted prices are based on the actual Conditions of Sale at that time
b) The Company reserves the right to make a handling charge on any orders, the total invoice price of which (excluding VAT) is less than £250.00 or any other such value may be notified in writing to the purchaser from time to time.
c) Post the placing of an order pursuant to a Quotation, in the event of any change in the cost of raw materials or labour required to fulfil the order, prices may be subject to an appropriate variation.
d) By placing an order and making an offer to buy a product, the Purchaser authorises the Company to transmit information (including any updated information) or to obtain information about the Purchaser from third parties from time to time and this may include verification checks involving debit or credit card number or credit reports in order to authenticate the Purchaser’s identity; to validate the Purchaser’s credit card; to obtain an initial credit card authorisation; to protect the Purchaser and the Company from fraud; and to enable the Company to arrange delivery of the Purchaser’s order to a nominated delivery address.
a) Unless otherwise agreed in writing of the Purchaser is using third party finance/credit, payment is due in full as indicated in the Terms shown on the Invoice.
b) Where the contract is to be, or may be, fulfilled in separate instalments, delivery or parts, payment for each instalment, delivery or part shall be made as if the same constituted a separate contract.
c) No discount or other deductions are allowed unless specified in writing by the Company.
d) The Company will be entitled to charge interest at 3% above the base rate of National Westminster Bank PLC from time to time on all overdue accounts in accordance with clause 11 on these Conditions of Sale.
e) Notwithstanding Condition 3 (a) the Company shall without prejudice to its other rights, have the right by notice in writing to the Purchaser to demand immediate payment of all monies due from the Purchaser to the Company for any goods delivered at whatever time.
f) A deposit to secure a sale is subject to a 48-hour cooling off period. After this time no refund will be given unless on the grounds finance is not accepted.
The Company shall be entitled to refuse to accept any order, or to sell on credit to any proposed Purchaser without providing any reason.
Unless otherwise stated goods destined for delivery in the UK mainland will be carriage paid by the Company providing the other is to minimum value as printed on the current price list.
6. CLAIMS FOR SHORT
The Company will not be liable for any loss or damage or shortage during delivery unless the following instructions are complied with:
a) Notification in writing is received by the Company within seven days of the date of invoice if the goods are not received.
b) Consignments must be examined immediately on the arrival thereof. If any parcel appears to be damaged or pilfered the receipt must be clearly marked “Parcel Damaged” or “pilfered”. The Company must be notified of the damage or short delivery in writing within twenty-four hours of delivery and within four days of delivery a detailed claim (including photographs of any alleged damage) must be sent in writing to the Company and the packaging retained and dealt with as directed by the Company.
Unless claims are notified in accordance with clause 6 the purchaser shall be bound to accept and pay for the goods delivered in accordance with clause 3 (a).
8. DELIVERY AND PASSING OF RISK
a) Unless otherwise agreed in writing delivery shall be made at the Purchasers premises specified in the order. Risk in the goods shall pass to the Purchaser on delivery.
b) Any times quoted for despatch, repair or replacement are estimates only and the Company shall not be liable for failure to despatch, repair or replace within such time.
c) In so far as there is a delay in delivery which is caused by some fault of the purchaser, then the Company reserves the right to introduce a service charge of £35.00 per week in relation to storage. During this time, title to and risk in the goods shall remain with the Company.
d) Where a Purchaser fails to accept deliveries in accordance with the terms and conditions of the order, the balance of undelivered goods shall be invoiced to the Purchaser, the goods being held at the Purchaser’s risk and any storage and additional carriage costs being charged to the Purchaser’s account.
e) The Company will do all it reasonably can to deliver the goods to the Purchaser within the estimated timescales but shall not be held liable for any delay or failure to deliver the Purchaser’s order within the estimated timescale as a result of such delays. Delays are occasionally inevitable due to unforeseen factors or events outside the Company’s control, for example, material shortages, travel or transportation disruption, import delays or higher-than-anticipated demand.
9. PASSING OF RISK
a) Goods are supplied to the Purchaser by the Company subject inter alia to the following terms and conditions.
b) Notwithstanding delivery and the passing of risk in goods, title to and ownership of the goods shall remain with the Company until payment in full for the goods, and for all other goods supplied by the Company to the Purchaser for which payment is then due, has been received by the Company.
c) If payment for the goods is overdue in the whole or in part the Company shall be entitled at any time to require the Purchaser to return the goods at its own cost to the Company and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the goods are stored and re-possess and re-sell the goods or any of them. Payment for the goods shall become due inter alia immediately upon the commencement of any act or proceeding in which the Purchaser’s solvency is involved.
d) Until the Company is paid in full for the goods, and all other goods supplied by the Company for which payment is then due, the relationship of the Purchaser to the Company shall be that of a fiduciary and bailee with respect to all goods for which payment is outstanding and the Purchaser shall keep all such goods separate from those of the Purchaser and third parties and properly stored, protected, insured and identified as the Company’s property. A like right for the Company shall apply where the Purchaser uses the goods in any way
so as to be entitled to payment from a third party. Until the Company is paid in full as foresaid the Purchaser shall be entitled to re-sell the goods in the ordinary course of its business but shall account to the Seller for the proceeds of sale of the goods, including insurance proceeds, and shall keep all proceeds of sale of such goods separate from any monies of the Purchaser or of third parties.
e) The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but if the Purchaser does so all monies owing by the Purchaser to the Seller shall be without prejudice to any other right or remedy available to the Seller forthwith become due and payable.
a) Subject only to any express terms of a warranty that may apply to the goods purchased as set out in clause 11, return of goods will not be accepted unless the Company or its appointed agent, shall first have had the opportunity of examining some and/or confirming the goods may be returned, unless the Company has agreed otherwise in writing.
b) Any goods returned in accordance with clause 11(a) which, for any reason, is not attributable to the Company will be subject to a handling charge of 20% of net value.
c) Any returned goods which are claimed to be defective and on inspection are found to be in working order may be returned to the Purchaser at the Company’s discretion and Purchaser’s cost.
d) Returned goods should, wherever possible, be packed in the original packaging and in any event, be placed in such a manner to ensure the goods are delivered to the Company without loss or damage. Goods returned to the Company, which have not been supplied by them, will be returned as received and a handling and carriage charge will be payable.
Any product(s) supplied by the Company, which fails during its twelve months’ (or extended) warranty period as a result of faulty workmanship or materials in manufacture, will be repaired or replaced (at the discretion of the Company), free of charge, providing the product(s) is forwarded to the Company suitably packed and carriage paid. The Company’s liability for shortage, failure or defect and the goods supplied shall be limited to the cost of making good such shortage, failure or defect by repair or replacement and the Company shall not in any event be liable for any direct or indirect damage or loss whatsoever sustained or liability incurred by the Purchaser. Furthermore, it is the responsibility of the Purchaser to satisfy itself as to the fitness or suitability of the goods for any particular purpose and the goods are sold without any warranty, express or implied as to their suitability for a particular purpose or condition save where the Company has given specific written advice in connection therewith.
12. LIABILITY AND INDEMNITY
a) If the fulfilment of an order (or any aspect of it) would be illegal or unlawful, including by reason of breach of export controls or sanctions, rules, or the Purchaser fails any of the Company’s fraud detection or anti-money laundering detection checks, the Company has the right to stop or cease to fulfil the order (or part thereof) at any time and shall incur no liability in such circumstances.
b) The Purchaser has certain rights as a customer, including legal rights relating to faulty or misdescribed goods. Nothing in these Terms and Conditions will affect these legal rights and, in particular, the Company will perform its obligations under these Terms and Conditions with reasonable care and skill. All descriptive and forward specifications, drawings and particulars of weights and dimensions issued by the Company are approximate only, and are intended only to present a general idea of the goods to which they refer and shall not form part of the contract.
c) Any orders delivered to the Purchaser will be of satisfactory quality. However, if the Company delivers an order that is not of satisfactory quality, the Purchaser can contact the Company for a repair or replacement.
c) The Company will not be liable, in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise out of or in connection with the Terms and Conditions for any direct, special, incidental, indirect or consequential damages including loss of profit, loss of opportunity or any losses related to any business including (without limitation) lost data, earnings or business interruption that result from the use of, or the inability to use, the purchased goods, even if the Company has been advised of the possibility of such damages.
e) The Purchaser agrees to fully indemnify, defend and hold harmless the Company, its agents, officers, directors, employees and suppliers, from and against all claims, liability, damages, losses, costs and expenses, including reasonable legal fees, arising out of any breach of these Terms and Conditions by the Purchaser or any other liabilities arising out of the Customer’s use of the website.
f) Nothing in these Terms and Conditions shall exclude or limit the Company’s liability for death or personal injury resulting from its negligence or that of its agents or employees.
In the event of any employee of the Company making an error in any term, contract, offer, acceptance or quotation the Company may by notice in writing to the purchaser correct the error in which case (provided that the correction is adverse to the purchaser) the purchaser shall be entitled within seven days of such notice to cancel that portion of the order to purchase to which the said correction relates.
Any performance figures given by the Company are estimates based on its experience and in-house testing and as such are what the Company expects to be possible using certain
reasonable assumptions. The Company does not guarantee such performance figures and accepts no responsibility whatsoever or howsoever for the Purchaser attaining such performance figures and therefore shall be under no liability for damages or failure to attain such figures unless the Company has specifically and in writing guaranteed performance figures and then only subject to recognized tolerances applicable to such figures. The Company reserves the right to update performance figures and protocols as further data becomes available.
15. SUSPENSION OR CANCELLATION OF DELIVERIES
If the purchaser cancels his order the Company shall be entitled to recover loss sustained thereby from him. The purchaser will indemnify the Company in respect of any third-party claims arising against the Company by virtue of any act or omission arising out of the companies’ repudiation of the contact or suspension or cancellation of deliveries under this condition.
16. SMART GUARANTEE
The Smart Guarantee is only valid for products which do not deliver effective treatments where-by the customer has followed all correct published treatment protocols. The Smart Guarantee buyback is valid for a 12-month period from date of installation/delivery (whichever is first). The Smart Guarantee buyback calculated as follows upon successful demonstration of a product not delivering effective treatments:
Within the first two calendar months from installation/delivery – the Company will re-purchase the product at 80% of invoice price.
Between months 3 – 12 from installation/delivery, the buyback amount reduced by an additional 8% of original invoice value each month on an accumulative basis.
All drawings descriptions and other information submitted by the Company shall remain the property of the Company together with the copyright therein and promptly upon request by the Company the purchaser shall return the same to the Company.
The Company shall keep and use any data relating to the Purchaser in accordance with the provisions of all relevant data protection legislation to process the Purchaser’s order and payment and (unless the Purchaser requests the Company does not do so), to inform the Purchaser about similar products that the Company provides and essential technical updates. The Purchaser may stop receiving this information at any time by contacting the Company.
19. FORCE MAJEURE
The performance of all contracts is subject to variation or cancellation owing to Act of God. War Strikes, Lockout, Fire, Drought, Riot, Civil Commotion, restriction by Government or other competent Authority or any other cause beyond the company’s control or owing to the company’s inability to procure materials or articles except at enhanced prices due to any of the afore going clauses.
20. HEALTH AND SAFETY
a) The Purchaser shall be responsible for ensuring that all statutory, government or local regulations are complied with in relation to the operation of any goods purchased from the Company. Should any local regulations require amendments to the specification the cost of any such amendments shall be charged to the account of the Purchaser in addition to the original contract price. The Purchaser shall ensure that all instructions, handbooks, notices and warnings issued by the Company are properly understood and complied with at all times by all persons using the goods or working within close proximity to them, the Purchaser being responsible for the translation of the English narrative supplied by the Company.
b) It is the Purchaser’s responsibility to ensure that any adverse incidents relating to the goods are reported back to the Company in writing as soon as possible following any such incident taking place.
21. INSOLVENCY OF PURCHASER
This Clause 21 applies if:
a) The Purchaser makes any voluntary arrangements with its creditor or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or
b) An incumbrancer takes possession of or a receiver is appointed to dispose of any of the property or assets of the Purchaser,
c) The Purchaser ceases or threatens to cease to carry on business, or
d) The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
e) If clause 21(a) applies, then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries under the contract, without any liability to the Purchaser, and if the goods have been delivered, but not paid for, the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
Save, as provided by these Terms and Conditions and save for the companies, implied undertaking as to title etc. contained in S. 12 of the Sale of Goods 1979 (liability for death or personal injury resulting from negligence) all other obligations and liabilities whatsoever of the Company whether in contract or in tort or otherwise excluded.
23. LEGAL CONSTRUCTION
These Terms and Conditions and any contract following thereon shall be governed by and construed in accordance with the Laws of England and Wales and Wales and the parties
shall submit to the jurisdiction of the English Courts.
a) The Company may change these Terms and Conditions at any time. If any clause of these Terms and Conditions shall be deemed unlawful, void or for any reason unenforceable, then that clause shall be deemed severable from the Terms and Conditions and shall not affect the validity and enforceability of the remainder of these Terms and Conditions which shall continue to have full force and effect.
b) If the Purchaser breaches these Terms and Conditions and the Company takes no action it will still be entitled to use its rights and remedies in other situations where the Purchaser is in breach. No waiver by the Company shall be construed as a waiver of any proceeding or succeeding breach of any clause of these Terms and Conditions.
c) The provisions of the Contracts (Rights of Third Parties) Act 1999 are expressly excluded from these Terms Conditions such that no third party may claim any rights under these Terms and Conditions.
d) These Terms and Conditions govern the relationship with the Purchaser and supersede any and all preceding and contemporaneous agreements between the Purchaser and
the Company. Any waiver of any provision of the Terms and Conditions will only be effective if in writing and signed by a Director of the Company. The Purchaser confirms that, in agreeing to accept the Terms and Conditions, it has not relied on any representation save insofar as the same has expressly been made a clause of these Terms and Conditions and the Purchaser agrees that it shall have no remedy in respect of any representation. The Purchaser’s statutory rights are not affected by these Terms and Conditions.