The Customer's attention is particularly drawn to the provisions of clause 10 (Limitation of liability).
The following definitions and rules of interpretation apply in this agreement.
Commencement Date: has the meaning given to it in clause 2.2.
Company: Smet UK Limited registered in England and Wales with company number 5932188 acting as agent for Smet Konstrukt NV, Smet IB bvba.
Company Materials: has the meaning given to it in clause 8.1(h).
Contract: the contract between the Company and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Company.
Delivery Location: has the meaning given to it in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 13.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Company.
Order: in the Customer's purchase order form, or the Customer's written acceptance of the Company's quotation, or overleaf, as the case may be.
Services: the services, including the Goods, supplied by the Company to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Company to the Customer.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that statute or statutory provision.
(b) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by the Company shall not constitute an offer, and may be withdrawn or revised at any time before acceptance of the Order by the Company.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification.
3.2 The Company reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Company shall notify the Customer in any such event.
3.3 Any plans, designs or illustrative concepts prepared by the Company is and remains the property of the Company and may not be reproduced in whole or in part without the Company’s written consent.
3.4 Materials used are subject to colour variation and all specifications and measurements are subject to variations and normal manufacturing tolerances. The Customer must rely on their own skill and judgement in determining the fitness or suitability of the goods for any particular purpose. The accuracy of details in illustration and data is given by way of clarification thereof only and the use of such description shall not constitute this Contract as a sale by description. Where such information is material this should be confirmed and verified prior to the order being placed.
4. Delivery of Goods
4.1 The Company shall ensure that delivery of the Goods is accompanied by a delivery note which shows the date of the Order and the Goods Specification.
4.2 The Company shall deliver the Goods when it makes the Goods available for collection or delivery to the Customer or any agent of the Customer including any carrier of the Customer at the agreed Delivery Location set out in the Order on an agreed date and at an agreed time.
4.3 The Company may at its discretion deliver the Goods in instalments.
4.4 Delivery of the Goods shall be:
(a) where the Services Specification confirms full installation of the Goods, upon the unloading of the Goods at the Delivery Location. For the avoidance of doubt Goods shall be unloaded at ground level only.
(b) where installation of the Goods is being undertaken by the Customer or its agent, i.e. self-install, upon the delivery of the loaded Goods to the Delivery Location, the Customer or its agent will be responsible for unloading and placing in position on site and ensuring that all plant and equipment required to fulfil this obligation are available at that time.
4.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.
4.6 If the Company fails to deliver the Goods or if Goods are delivered damaged or do not comply with their description in the Good Specification, and the Customer has fulfilled its obligations under clause 9 the Customer must inform the Company in writing within 24 hours. The Company must be given the opportunity to inspect the Goods within 7 days of the notification. The Company’s liability shall be limited to the amount paid by the Customer for the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions, including but not limited to, off-loading area and temporary storage area, for the Goods or any relevant instruction related to the supply of the Goods.
4.7 If the Customer fails to take or accept delivery of the Goods within five Business Days of the Company notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company's failure to comply with its obligations under the Contract in respect of the Goods. The Company shall store the Goods for a maximum of 20 days until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5. Quality of Goods
5.1 The Company warrants to the Customer that on delivery, and for a period of 36 months from the date of delivery (warranty period),] the Goods shall:
(a) Conform in all material respects with the Goods Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Company.
5.2 Subject to clause 5.3, the Company shall, at its option, repair or replace the defective Goods if,
(a) the Customer gives notice in writing during the warranty period promptly upon discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
(b) the Company is given a reasonable opportunity (including access) to examine such Goods.
5.3 The Company shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods which will further affect the defective Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Company following and relying on any drawing, design or Goods Specification supplied by the Customer or its agent;
(d) the Customer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions (including either too high or too low moisture contents of the air inside the premises where the Goods are or have been installed); or
(f) the Goods differ from their description OR the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Company.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Company receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.3.
6.3 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 11.1(a) then, without limiting any other right or remedy the Company may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Company may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Supply of Services
7.1 The Company shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Company reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
7.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 Any plans, designs prepared as part of the Services shall be the property of the Company and may not be reproduced by the Customer in part or whole without the Company’s prior written consent.
8. Customer's obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
(d) provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of the Company (Company Materials) at the Customer's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Service Specification and the Goods Specification.
8.2 If the Company's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company's performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 The price for Goods and charges for services:
(a) shall be the price set out in the Order; and
(b) be inclusive of delivery to the Delivery Location, including freight, insurance, delivery charges but excluding V.A.T. and other taxes or duties unless expressly stated otherwise in writing.
9.2 The Company reserves the right to:
(a) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Company that is due to:
(i) any factor beyond the control of the Company (including increases in taxes and duties, and increases in labour, materials, parts, manufacturing costs or transport, changes in delivery schedules or quantities or any other costs of any kind arising for any reason after the Commencement Date;
(ii) currency fluctuations between the Euro and Sterling relating to Goods manufactured and sourced in Europe and imported into the UK exceeding 7,5;
(iii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iv) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Goods.
9.3 The Company shall invoice the Customer in three instalments;
(a) For 10 % of the value of the Order upon the Commencement Date;
(b) For 40 % of the value of the Order after sign off on the production drawings and prior to the start of the production of the Goods; and
(c) For 50 % of the value of the Order prior to delivery of the Goods.
9.4 The Customer shall pay each invoice submitted by the Supplier within 14 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract.
9.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.6 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company's remedies under clause 11 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 Nothing in these Conditions shall limit or exclude the Company's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 10.1, the Company shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1, the Company’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the total charges paid under the Contract.
10.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.5 This clause 10 shall survive termination of the Contract.
11.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(b) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(c) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
11.3 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 11.1(a) to (c) or the Company reasonably believes that the Customer is about to become subject to any of them.
12. Consequences of termination
12.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest. All paid invoices are non-refundable by the Company. In respect of Services and Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Company Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose they are not meant to be used for.
12.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
12.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
13. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
14.1 Assignment and other dealings
(a) The Company may at any time assign, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company); or sent by email to the address specified in Order.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.4 Entire agreement
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
14.5 Third parties rights
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.6 Personal Data
The Company shall process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
14.8 Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.