1.1. “Contract” means these Standard Terms and Conditions of Supply under which the Products are supplied by the Company to the Customer following orders placed by means of telephone, email, messenger, or any other method whether electronic or paper based.
1.2. “Customer” means the party identified as the Customer in this Contract to whom the Company may agree to supply Products from time to time in accordance with the terms and conditions of this Contract.
1.3. “Company” means Smithie UK Limited
1.4. “Products” means the hardware or software goods including but not limited to computer hardware and software items to be provided by the Company to the Customer in accordance with this Contract.
2. ORDER ACCEPTANCE
2.1. All orders placed with the Company by the Customer for Products, shall constitute an offer to the Company, under the terms and conditions of this Contract, subject to availability of the Products, and to acceptance of the order by the Company’s authorised representative.
2.2. All orders are accepted and the Products supplied subject to the express terms and conditions of this Contract only. The Company may at any time amend this Contract by posting the amended Contract on www.smithieuk.co.uk.
2.3. It is agreed that the terms and conditions of this Contract (or any amendments to them) prevail over the Customer's terms and conditions of purchase unless these latter terms and conditions are amended by the Company in writing and signed by the Company.
2.4. The Customer cannot rely on statements made before signature of the Contract unless made by the Company’s authorised representative and either:
2.4.1. it is expressly stated by the Customer that the statement is to be relied upon; and
2.4.2. it is reproduced in a letter to the Customer and not withdrawn before the Contract is made.
2.5. No order placed on the Company system directly shall become a purchase contract, and therefore binding upon the Company, until the Products have been despatched to the Customer in accordance with clause 6 below.
2.6. Nothing in this Contract affects or limits the party’s liability for fraudulent misrepresentation.
2.7. The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any purchase order, and shall be solely responsible for its selection of Products on any purchase order and the fitness of the Products for any particular purpose. The Company disclaims any liability for any errors in the Customer's purchase order.
3. INDEPENDENT CONTRACTOR
3.1. The relationship between the Company and the Customer is that of independent contractor. 3.2. Neither party is the agent of each other, nor has any authority to make any contract or to impose any obligation on the other party without their express prior permission.
4. RECEIVING A FEED AND DIRECT ORDERING
4.1. Obligations of the Customer
4.1.1. The Customer will appoint the one person who is responsible for maintaining the links from the Company system into the Customer system.
4.1.2. The appointed person will also be responsible for all order related issues.
4.1.3. The Customer may change this person at any time by informing the Company in writing of the new person.
4.1.4. The Customer shall ensure that they meet all technical requirements of the Company Feed system access and that the Company shall not be liable for any losses which result due to technical incompatibilities or system errors.
4.1.5. The Customer shall take all reasonable steps to ensure that any people authorised to interact with the Company Feed system shall not pass any login user details to third parties under any circumstances.
5. FEED SYSTEM AVAILABILITY
5.1. The Company will not be liable for any losses or damages resulting from the Feed System being unavailable. Whilst the Company endeavours to provide 24/7 access to the Feed System, the Company reserves the right to suspend the Feed System operation, temporarily or permanently and without prior notice.
5.2. Whilst the Feed System is intended to provide 24/7 service, all orders must be placed on the Feed System before 17:00 to qualify for a next-working day delivery of the Products.
6.1. Any date or time quoted for despatch of the Products is to be treated as an estimate only. Despatch may be postponed because of conditions beyond the Company's reasonable control, and in no event shall the Company be liable for any damages or penalty for delay in despatch or delivery of the Products.
6.2. Risk shall pass to the Customer at the time the Products are delivered.
6.3. At the time of delivery the Customer must check that the quantity of Products matches the quantity set out on the Delivery note and that the exterior of the Products are in good condition. 6.4. Customer must then indicate this on the Proof of Delivery and sign the Proof of Delivery accordingly. If an over shipment of the Products has occurred the Customer must also notify the 6.5. Company as soon as possible and in any event within 5 working days of the delivery. The Customer must not sign the Proof of Delivery “unchecked” or “unexamined” or any such similar wording.
6.6. A signed Proof of Delivery by or on behalf of the Customer shall be conclusive evidence of delivery and (except to the extent that any damage or discrepancy is noted on the Proof Of Delivery) that it was received in good order and condition and accordingly no claims shall be bought in respect of the delivery claiming the contrary.
6.7. The Customer must inspect the Products immediately after delivery is complete. If any Products are damaged (or not delivered), the Customer must notify the Company within 5 working days of the delivery or expected delivery. If proof of delivery is required, this must be requested within 14 days of the date of the invoice.
6.8. The Company may deliver the Products in instalments. Each instalment is treated as a separate delivery.
7. CANCELLATION AND RESCHEDULING
7.1. Unless otherwise agreed in writing, any request by the Customer for cancellation of any order or for the rescheduling of any deliveries will only be considered by the Company if made before despatch of the Products. The Customer hereby agrees to indemnify the Company against all losses, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
8.1. Price lists and other published material as used by the Company are intended only as an indication as to the price and range of the Products offered and no prices, descriptions or other particulars contained therein shall be binding on the Company.
8.2. All prices are given by the Company at the time of the order on an ex-works basis and the Customer is liable to pay for transport, packing and insurance costs.
8.3. The systems used by the Company contain a large number of Products and it is always possible that, despite the Company’s best efforts, some of the Products listed may be incorrectly priced. Where a Product's correct price is less than our stated price, the Company will charge the lower amount when dispatching the Product to you. The Company is under no obligation to provide the Products to you at the incorrect (lower) price, even after it has sent a Dispatch Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by the Customer as a mispricing. Notwithstanding any acceptance by the Company of any offer to purchase Products, if there has been a material or obvious pricing error by the Company, the Company shall be entitled within 30 days of its acceptance of such offer to either invoice the Customer for the Customer's true list price (not exceeding the prevailing market price at wholesale level) of the Product at the date of order or, if the Customer shall prefer, cancel the order and, if the Products have already been dispatched, collect the Products at the Company’s expense and credit the Customer for any charges (e.g. price and freight) invoiced by the Company.
8.4. All prices are represented in Sterling Pounds and are exclusive of Value Added Tax. All such taxes are payable by the Customer and will be levied in accordance with UK legislation in force at the tax-point date.
9. PAYMENT TERMS
9.1. Payment terms will only be offered to the Customer where the Company has obtained satisfactory credit insurance on the Customer, and the Company has raised a credit account. Clauses 9.1.1.- 9.13. refer only to instances where the Customer has a credit account with the Company. If a credit account cannot be established, payment will be expected at time of order.
9.1.1. Invoices will be raised and dated by the Company on the date of despatch of the Products.
9.2. Unless otherwise specifically requested and agreed in writing by the Company, invoices will be payable by the Customer 30 days from the date of invoice. The time of payment shall be the essence of the Contract. Payments which are not received in full by the due-date, will be considered overdue and remain payable by the Customer together with the interest for late payment and reasonable debt recovery costs. The interest payment will be at a rate equivalent to 0.5% above the Barclay Bank base rate, as seen on http://www.barclays.co.uk/Savings/BarclaysBankBaseRate/P1242557964824 . This interest is calculated on a daily basis from the date of invoice until payment; such interest to be compounded on the first day of each calendar month and payable both before and after any judgment (unless the court orders otherwise).
9.3. The Company reserves the right to charge a surcharge on credit card transactions (which may exceed the amount charged to the Company by the credit card companies) by way of a handling or processing charge. The size of this charge can be advised by an authorised representative from the Company.
9.4. The Customer must notify the Company in writing within 7 days of the date of invoice of any errors within the invoice. Failure will result in the Company assuming acceptance of the invoice in full.
9.5. The Customer’s credit-limit may be withdrawn or amended without prior notice by the Company. If credit facilities are withdrawn all invoices may become immediately payable by the Customer.
9.6. Should credit facilities be provided the Customer undertakes to notify the Company without delay of any material change in its finances, structure, share ownership and/or value of assets which may affect the Customer’s credit status. In addition to any remedy available at law, failure to report any such changes may result in credit being withdrawn without prior notice.
9.7. The Customer does not have the right to set off any money claimable from the Company against any sums owing to the Company by the Customer this includes, but is not limited to, pass through vendor funding.
9.8. If Products are delivered in instalments the Company shall be entitled to invoice each instalment upon delivery thereof.
9.9. Until the Customer pays all debts to the Company:
9.9.1. all Products that have been purchased by the Customer from the Company will remain the property of the Company;
9.9.2. all Products that have been purchased by the Customer from the Company must be stored so that they are clearly identifiable as the property of the Company; and
9.9.3. the Customer must insure all such Products.
9.10. The Customer shall have the right to sell the Products in the ordinary course of business unless, or until:
9.10.1. the Customer becomes, or is deemed to be, insolvent in accordance with clause 14.2. herein. If the aforementioned circumstance occurs then the right to sell the Products will be revoked with immediate effect and without the Company being required to give notice to the Customer; or
9.10.2. the Company revokes the right to sell Products in the ordinary course of business by informing the Customer, which revocation shall have immediate effect.
9.11. If the Customer’s right to sell the Products in the ordinary course of business ends, the Customer must permit the Company to reclaim the Products.
9.12. The Customer agrees to give the Company permission to enter any premises where the
Products are stored:
9.12.1. at any time to inspect them; and
9.12.2. to remove them, using reasonable force if necessary, after the Customer’s right to use or sell them has finished.
9.13. Despite the Company’s retention of title to the Products, the Company reserves the right to take legal proceedings to recover the cost of Products supplied should the Customer not make full payment by the invoice due date.
9.14. The Company reserves the right to stop supplying Products to the Customer at any time.
10. SPECIFICATION OF PRODUCTS
10.1. The Company will not be liable in respect of any loss or damage caused by, or resulting from, any variation for whatsoever reason in the manufacturer’s specifications or technical data of the Products.
10.2. The Company will not be responsible for any loss or damage resulting from curtailment or cessation of supply of Products following any variation as described in clause 10.1. of this Contract.
10.3. The Company will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any such notice thereof from the manufacturer.
10.4. Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified.
11.1. The Customer shall safeguard and (save as may be required by law) keep confidential all information entrusted to it by the Company which is not in the public domain, and take all reasonable precautions to safeguard the Company’s confidential information.
12. WARRANTY SUPPORT AND RETURNS/ROTATION
12.1. Unless otherwise stated, all products are sold with full manufacturer’s warranty. The length of warranty period varies from product to product, although is usually 1,2 or 3 years. (Utilising the manufacturer’s own warranty procedure will ensure the best possible service level when resolving your customer’s issue, and your customer should be informed of this fact.)
12.2. If the Customer insists on returning the product to the reseller, the Company will support the Customer by offering a back to back RMA service on all products for the first 12 months after purchase, wherever possible. (As products are regularly updated by the manufacturer, the Company cannot confidently offer a replacement service from our own stock after this period.)
12.2.1. It is expected that any product requested for return under warranty will have been verified as faulty by the manufacturer, or the Customer’s technical support team. Any RMA must be returned with a fault reference from either the manufacturer, or the Customer’s technical support team.
12.2.2. A full fault description is required and must be individually marked on each item being returned.
12.2.3. All items being returned must be complete in original packaging. Any missing components will cause the RMA to be rejected and returned to the reseller.
12.2.4. Any goods received damaged or where the “fault” is obviously caused by misuse will be rejected, and returned to the reseller.
12.2.5. For any goods rejected via the RMA team for the reasons above, and then returned to the reseller, Carriage charges for returning the goods will be invoiced to the reseller.
12.3. After the 12 month period referred to in clause 12.2., the Company will expect the Customer, or the Customer’s customer, to engage directly with the manufacturer’s warranty team for the duration of the remainder of the manufacturer’s warranty to resolve any issue.
12.4. For any replacement product sent out by the Company, any warranty support issued by the Company will be considered as starting on the date the original product was bought. The manufacturer’s warranty on the replacement product is not affected by this.
12.5. In certain instances, the Company will agree a return of products that are unsold by the reseller. However, the Company may, at its discretion, levy an administration fee for the return and re-stocking of these goods. This fee will usually be 15% of the value of the goods.
12.5.1. With any return, or rotation, of products for any reason other than warranty support, an administration fee may be avoided if new goods are purchased to the same value, or greater, as the return.
12.5.2. All goods agreed to be returned for any reason other than warranty support, must be returned in an “as new” condition.
12.6. Once an RMA number has been issued for either a warranty support issue or a return, the applicable goods must be returned to Smithie (UK) Ltd within 10 working days. Any RMA number will be cancelled after this time and will therefore be no longer valid for return.
12.7. The only exception to clause 12 is TV products. These need to be logged with the warranty company directly, and not with the Company.
13. INDEMNITIES AND LIMITS OF LIABILITY
13.1. This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of the Company’s employees, agents and sub- contractors) to the Customer in respect of:
13.1.1. any breach of this Contract;
13.1.2. any use made or resale of the Products by the Customer, or of any product incorporating any of the Products; and
13.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Contract .
13.2. Nothing in this Contract shall limit or exclude the liability of either party for:
13.2.1. death or personal injury resulting from negligence; or
13.2.2. fraud or fraudulent misrepresentation; or
13.2.3. breach of the terms of the Sale of Goods Act 1979.
13.3. Without prejudice to clause 13.2., the Company shall not be liable to the Customer whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
13.3.1. loss of profit; or
13.3.2. loss of goodwill; or
13.3.3. loss of business; or
13.3.4. loss of business opportunity; or
13.3.5. loss of anticipated saving; or
13.3.6. loss or corruption of data or information; or
13.3.7. special, indirect or consequential damage suffered by the Customer that arises under or in connection with this Contract.
13.4. Without prejudice to clause 13.2. the Company’s total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to £100,000.
13.5. The Customer shall indemnify and defend the Company and its employees in respect of any claims by third parties which arise from any Company performance or non-performance pursuant to the instructions of the Customer or its authorised representative.
14. TERMINATION FOR CAUSE
14.1. This Contract may be terminated forthwith by notice in writing:
if either party fails to perform any of its obligations under this Contract s and such failure continues for a period of 14 days after written notice thereof by the other party; or
by the Company if the Customer fails to pay any sums due hereunder by the due- date notwithstanding the provisions for late payment as stated in clause 9.2. of this Contract or if the Customer becomes insolvent.
14.2. The Company will deem the Customer insolvent if:
14.2.1. the Customer is unable to pay debts as they fall due; or
14.2.2. the Customer or any item of the Customer’s property becomes the subject of:
184.108.40.206. any formal insolvency procedure such as receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy; or
220.127.116.11. any application or proposal for any formal insolvency procedure; or
18.104.22.168. any application, procedure or proposal overseas with similar effect or purpose.
14.3. Any termination of the Contract under clause 14 of these terms and conditions shall be without prejudice to any other rights or remedies a party might be entitled to and shall not affect any accrued rights or liabilities of either party.
14.4. The confidentiality obligations under clause 11 shall survive termination of this Contract.
15. DATA PROTECTION
15.1. The parties are committed to respecting the privacy rights of individuals. To the extent that a party collects and transfers to the other party any personal data, the receiving party will comply with relevant laws and regulations related to this collection and transfer and agree also to comply with relevant laws and regulations related to the storage, maintenance and processing of such personal data.
15.2. For the purpose of verifying the Customer’s financial standing the Company reserves the right to obtain information on the Customer’s creditworthiness from credit agencies or credit insurers and to report data to them. The Customer expressly consents and agrees that the Company may make such enquiries and searches and obtain such references as it considers necessary from credit reference agency or credit insurer (which will keep a record of any search made) and may disclose the results of those enquiries, searches and references and any information given by the Customer to any credit reference agency.
16.1. The headings in this Contract are for ease of reference only and shall not affect its interpretation or construction.
16.2. No forbearance, delay, indulgence by either party in enforcing its respective rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or any later breach.
16.3. The Customer agrees not to assign any of its contractual rights herein without the prior written consent of the Company.
16.4. If any of these terms of this Contract are unenforceable as drafted it will not affect the enforceability of the other terms and if it would be enforceable if amended, it will be treated as so amended.
16.5. This Contract shall be construed in accordance with the laws of England and Wales and the jurisdiction of which shall be the courts of England and Wales.