1 Definitions and Interpretations
1.1 In these Conditions unless the context otherwise requires:
"Conditions" means these terms and conditions and any special terms and conditions agreed in writing between E H Smith and the Supplier;
"Contract" means any contract between E H Smith and the Supplier for the purchase of Goods and/or Services;
"E H Smith" means E H Smith (Builders Merchants) Limited Registered in England No. 800907.
"Goods" means the goods (including any part or parts of them) which the Supplier is to provide to E H Smith pursuant to the order in accordance with these Conditions;
"Goods Legislation" means any applicable statute, statutory rule, order, directive, regulation or other instrument having force of law (including any directive or order promulgated by any competent supra-national body), all British and European standards, UKAS (United Kingdom Accreditation Service) and all other legislation for the time being in force relating without limitation to the manufacture (including raw materials or chemicals used in the production process), packaging, delivery, carriage, storage, installation and use of the Goods or provision of the Services;
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce 2010;
"Order" means any order from E H Smith to the Supplier for the supply of Goods or Services in such form as E H Smith may determine from time to time including orders made by facsimile transmission, by letter or by email made in accordance with Condition 2.2;
"Services" means the services which the Supplier is to provide to E H Smith pursuant to the Order in accordance with these Conditions;
"Specification" means E H Smith's specifications or stipulations for the Goods and/or Services notified in writing to the Supplier;
"Supplier" means the person, firm or company to whom the Order is addressed.
1.2 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 any preceding words where a wider construction is possible.
2 Basis of Contract
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Supplier purports to apply under any quotation, Order acknowledgement, invoice or any other document issued by the Supplier). These conditions are in addition and without prejudice to any rights or entitlements of E.H.Smith conferred or implied by statute, common law or otherwise.
2.2 Any Order is an offer made by E H Smith to the Supplier and the Contract shall come into effect upon acceptance of the Order by the Supplier. Unless previously withdrawn by E H Smith, Orders shall be deemed accepted if not rejected by the Supplier by notice in writing within seven (7) days of their date. The Order number must be quoted on all correspondence, all advice notes and all invoices relating to such Order.
2.3 Only E H Smith has the authority to enter into Contracts (or request that Goods or Services should be delivered or performed pursuant to the Contract) and no customer of E H Smith shall enter into Contracts (or request that Goods or Services should be delivered or performed pursuant to the Contract) on behalf of E H Smith or act as E H Smith's agent. Accordingly E H Smith shall not be liable to pay for Goods or Services which have been ordered by or delivered at the request of E H Smith's customer direct with the Supplier, or E H Smith may elect to pay such invoices without prejudice to its right to refuse payment of later invoices.
3.1 When Goods are delivered from within the United Kingdom, delivery of the Goods shall take place at E H Smith's place of business, unless otherwise stated in the Order. When Goods are delivered from outside the United Kingdom, the Goods shall be Delivered Duty Paid (Incoterms 2010) at EH Smith's place of business, unless otherwise stated in the Order. Each delivery must be clearly marked in accordance with the Specification and/or the Order.
3.2 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provision of Incoterms shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms and these Conditions, these Conditions shall prevail.
3.3 Time of delivery is of the essence of the Contract. E H Smith or its customer shall be under no obligation to accept delivery of the Goods before the specified delivery time, but reserve the right to do so.
3.4 E H Smith may cancel any Order (notwithstanding that the Supplier may have accepted the Order) or delay the delivery of any Goods without incurring any liability at any time.
3.5 E H Smith shall have the right to change its delivery instructions at any time.
3.6 A proof of delivery document quoting the Order number shall accompany the Goods.
3.7 E H Smith shall not be obliged to accept quantities of the Goods or types of the Goods which vary from those specified in the Specification or the Order.
3.8 The Supplier shall ensure that the Goods will be properly packed and secured in such a manner as to reach their destination undamaged and in good condition. E H Smith shall not be obliged to return to the Supplier any packaging materials.
4 E H Smith's customers
4.1 E H Smith may from time to time provide the Supplier with an estimated delivery schedule which sets out the anticipated requirements of E H Smith's customers for the Goods and Services . The delivery schedules will set out the dates it is anticipated the Goods will be required to be delivered by and the estimated quantity of Goods and are for information purposes only and are not legally binding. E H Smith's customers may not confirm the delivery schedules and E.H.Smith will not be liable to pay for any Goods unless the delivery in question was specifically and individually authorised by E.H.Smith, that is, each and every "call off" must be authorised by E.H.Smith prior to each delivery, without prejudice to the provisions of conditions 3.4 and 3.5.
4.2 Where delivery of the Goods is to be made direct to E H Smith's customer the Supplier must deliver only the type, quality and quantity of Goods specified in the Order and/or Specification.
5.1 E H Smith shall not be deemed to have accepted any Goods until E H Smith (or E H Smith's customer if the Goods are delivered direct to E H Smith's customer by the Supplier) has had a reasonable time to inspect the Goods following delivery or after any latent defect has become apparent of at least 7 days following delivery of the Goods or completion of the Services or 7 days of discovery of the latent defect. For the avoidance of doubt no inspection or testing by E H Smith (or its customers) whether before or after delivery of the Goods nor the signing of any delivery note or other document acknowledging physical receipt of any Goods shall be deemed to constitute or evidence acceptance or approval of the Goods for the purposes of the Sale of Goods Act 1979 (as amended) nor be deemed a waiver of E H Smith's (or its customer') rights either to cancel or return all or any part thereof where the Goods are found to be defective or not in accordance with the Contract, Order or Specification.
5.2 The Supplier shall keep E H Smith informed promptly of any matter of which it is or reasonably should, as supplier of the Goods, be aware relating to the storage, transportation, handling, assembly or use of the Goods by E H Smith (including legislation or advice from responsible or professional or legal bodies in respect of raw materials used in the manufacture of the Goods) and the actions it has taken or proposes to take and those that E H Smith should take in relation to such matters.
6 Title and Risk
6.1 The Goods shall be at the risk of the Supplier until they are delivered in accordance with the Contract when, without prejudice to any right of rejection which E H Smith may have under the Contract or by law, title to and risk in the Goods shall pass to E H Smith, provided that if E H Smith pays for the Goods prior to delivery, title to the Goods shall pass to E H Smith when payment is made.
7 Provision of Services
7.1 If the Contract is for or includes Services to be performed by the Supplier then, the Supplier undertakes, represents and warrants to E H Smith and E H Smith's customers that:
(a) the Supplier shall carry out the Services strictly in accordance with the Order and the Specification;
(b) the Supplier will provide the Services with the highest level of skill, care and diligence and in a good and workmanlike manner in accordance with the provisions of these Conditions;
(c) the Services will be performed by appropriately qualified and trained personnel with due care and diligence and to such high standard of quality as it is reasonable for E H Smith to expect in all the circumstances;
(d) the Supplier will comply with and its personnel will comply with:
(i) all Goods Legislation to the best practice in the Supplier's relevant industry; and
(ii) the safety and security standards and site procedures and codes of E H Smith and its customers; and
(iii) any reasonable instructions and guidelines issued by E H Smith from time to time;
(e) the time of performance of the Services is of the essence of the Contract.
8 Prices and Payment
8.1 The price of the Goods and/or Services shall be in pounds sterling and shall be the price stated in the Order or the quotation. If there is any difference in the price between the Order and quotation then the price shall be the price in the Order. The price shall not be changed by the Supplier prior to delivery. The price shall be inclusive of all packaging, packing, labelling, insurance, delivery costs, and all other costs incurred by the Supplier in relation to the Goods and their delivery unless otherwise specified in the Order.
8.2 All sums payable under the Contract are inclusive of VAT (unless otherwise stated in the Order) and all other applicable taxes or duties payable.
8.3 The Supplier must invoice E H Smith within four days of delivery of the Goods or completion of the performance of the Services and a statement of account must be received within seven days of the end of the month of delivery of the Goods or completion of the performance of the Services, otherwise payment of the Supplier's account may be deferred by E H Smith until the following payment month without any loss of discount.
8.4 Invoices submitted before the time periods set out in Condition 8.3 above shall be deemed received on the date of delivery of the Goods or date of completion of the Services.
8.5 Invoices shall be in such form as E H Smith specifies from time to time and shall be addressed to E H Smith's registered office.
8.6 Unless otherwise stated in the Order, E H Smith shall pay the price of the Goods or Services within 45 days after the end of the month of the later of:
(a) receipt by E H Smith of an invoice and statement of account issued in accordance with Condition 8.3; or
(b) delivery of the Goods or completion of the Services.
No interest shall be payable by E H Smith under this Contract in any circumstances whatsoever. E H Smith may pay sums by BACS or by cheque.
8.7 The prices charged by the Supplier to E H Smith shall not exceed those prices charged by the Supplier to any other customer purchasing the same or similar goods and/or services in the same or smaller quantities and E H Smith shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier.
8.8 If the price is stated in the Order to be on a "time and materials" or "cost plus" basis or similar the Supplier shall give E H Smith access to all documents and information in the Supplier's possession or under its control to enable E H Smith to satisfy itself that the amount charged by the Supplier is properly and correctly charged in accordance with the Contract and in default E H Smith shall be entitled to withhold payment in whole or in part until such default is rectified to the satisfaction of E H Smith.
8.9 If any sums are due to E H Smith from the Supplier, then E H Smith shall be entitled to exercise the right to set-off such sums against any payments due to the Supplier from E H Smith under or in relation to this or any other Contract. The Supplier shall not be entitled to apply any amount due to E H Smith under the Contract in or towards payment of any sum owing by E H Smith to the Supplier in relation to any matter whatsoever.
8.10 Any money paid by E H Smith to the Supplier in respect of any Goods rejected under these Conditions together with any additional expenditure over and above the price specified in the Order reasonably incurred by E H Smith in obtaining other goods in replacement of any rejected Goods shall be paid by the Supplier to E H Smith within 7 days of the date of EH Smith's notice demanding the same or, at EH Smith's sole option, shall be deducted from the money still to be paid by E H Smith to the Supplier.
8.11 Should E H Smith have a bona fide dispute in respect of the whole or any part of any invoice then E H Smith shall be entitled to withhold payment of that invoice. The Supplier and E H Smith shall co-operate in good faith to resolve the dispute over the invoice as amicably and promptly as possible. On settlement of the dispute over the invoice E H Smith shall make the agreed payment (if any) in accordance with these Conditions as if the Goods were supplied or the Services were performed on the date on which the dispute over the invoice was agreed as resolved.
9.1 The Supplier undertakes, represents and warrants to E H Smith and E H Smith's customers that the Goods and their packaging and labelling shall:
(a) be accompanied with accurate, complete and comprehensible instructions for the treatment, assembly, use and/or storage of the Goods;
(b) conform to the Specification and with any instructions of E H Smith, and shall otherwise meet the requirements of the Order and this Contract;
(c) be of satisfactory quality, free from defects in materials and workmanship and fit for their intended purpose (whether such purpose is implied or expressly stated in the Specification, Orders or Contract) and Section 33 of the Sale of Goods Act 1979 shall not apply;
(d) be free from design and other inherent defects (save to the extent that the Goods have been supplied in accordance with designs of E H Smith);
(e) comply with all Goods Legislation; and
(f) conform strictly as to quality, quantity and description with any samples provided by the Supplier for the purpose of supply of Goods of that type.
9.2 The Supplier shall transfer or assign to E H Smith and E H Smith's customers or otherwise obtain for the benefit of E H Smith and E H Smith's customers any guarantee, warranty or other confirmation of quality, title or fitness for purpose given by any manufacturer of the Goods in respect of the Goods (or part thereof) to the extent that the same is capable of such transfer or assignment to E H Smith or otherwise providing such benefit for E H Smith or its customers.
9.3 If the Supplier breaches any obligation, warranty or requirement in the Contract in respect of the Goods or Services or the Goods or any instalment of the Goods are not delivered at the specified time or the Goods delivered are damaged then E H Smith shall be entitled at its sole discretion without liability to the Supplier (arising out of such action) and without prejudice to any other right or remedy E H Smith may have to take one or more of the following actions to:
(a) cancel the Contract and treat the Contract as having never been entered into by the Supplier; and/or
(b) reject the relevant Goods (in whole or in part) and any Goods already delivered which cannot be effectively and commercially used by reason of the non delivery of any undelivered Goods; and/or
(c) refuse to accept any subsequent delivery of the Goods; and/or
(d) recover from the Supplier any costs reasonably incurred by E H Smith or E H Smith's customer in obtaining substitute goods or services from another supplier; and/or
(e) require the Supplier at its sole cost to replace, repair the Goods or carry out such work as is necessary within 14 days so that the Goods conform to the Contract, Order and Specification; and/or
(f) require the Supplier at its sole cost to re-execute the Services in accordance with the Contract, Order and Specification within 7 days; and/or
(g) treat this Contract as discharged by the Supplier's breach and:
(i) delay payment of the price for the Goods and Services until the requirements of this Contract, Order and any Specification are entirely fulfilled,
(ii) refuse to make payment of the price of the Goods or Services; or
(iii) require the repayment of any part of the price of the Goods or Services which E H Smith has paid whether or not E H Smith has previously required the Supplier to repair the Goods, supply any replacement Goods or re-execute the Services; and/or
(h) claim such damages as may have been incurred by E H Smith or E H Smith's customer as a result of the Supplier's breach of the Contract.
9.4 If E H Smith claims that an Order has not been fulfilled or has been incorrectly fulfilled the Supplier shall be deemed to accept the validity of the claim unless it serves written notice on E H Smith disputing the said claim and stating the reasons for its dispute within 7 (seven) days of the date of the said claim.
9.5 If E H Smith exercises any right under these Conditions E H Smith may at its absolute discretion require the Supplier to collect the relevant Goods forthwith or return the Goods to the Supplier at the Supplier's cost.
9.6 E H Smith's rights under these Conditions are in addition to any statutory remedies available to E H Smith.
10 Product Recall
10.1 The Supplier shall immediately notify E H Smith in writing providing all relevant details if it discovers that there is:
(a) any defect in the Goods which have been delivered to E H Smith at any time; or
(b) any error or omission in the instructions for the use and/or assembly of the Goods;
(whether or not any such defect, error or omission represents a breach of the warranty in Condition 9.1 or any other Condition) which causes or may cause any risk of death, injury or damage to property.
10.2 E H Smith may at its discretion and at the Supplier's own cost:
(a) recall any Goods or any other products into which the Goods have been incorporated already sold by E H Smith to its customers (whether for a refund, credit or replacement which shall in each case be undertaken by the Supplier at E H Smith's option); and/or
(b) issue any notification whether in writing or otherwise to its customers about the manner of use or operation of any Goods or any other products into which the Goods have been incorporated already sold by E H Smith to its customers;
in each case on the basis of the identification whether by the Supplier, E H Smith, any of E H Smith's customers or any third party of any defect in the relevant Goods or any error or omission in the instructions for their use or assembly (whether or not that defect, error or omission represents a breach of the warranty in Condition 9.1 above or any other Condition) which E H Smith reasonably concludes affects or may affect any of the Goods supplied which causes or may cause any risk of death, injury or damage to property.
11.1 The Supplier acknowledges that E H Smith places particular reliance upon the Contract and in addition to any other remedy available to E H Smith, the Supplier irrevocably and unconditionally agrees to indemnify E H Smith its employees, sub-contractors and agents (who shall have no duty to mitigate their loss) in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all direct and indirect damages, losses, costs and expenses (including without limitation legal and other professional advisers' fees, economic loss, loss of profit, future revenue, reputation, goodwill, anticipated savings) and any consequential loss made against or incurred or suffered by any of them and whether wholly or in part resulting directly or indirectly from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) any claims that the Goods or Services infringe the Intellectual Property Rights of any third party by reason of the use, purchase or sale by E H Smith of the Goods including any royalties being payable to any third party (save to the extent that the Goods or Services have been supplied in accordance with the Specification or designs of E H Smith);
(b) any breach of the Contract by the Supplier, its employees, agents or sub-contractors or any act or omission by any of them including without limitation any delays in delivery and any costs or liabilities incurred by E H Smith in having to cancel any Order as a result of any such breach, act or omission or any other warranty or condition concerning the Goods or Services whether express or implied by statute or otherwise;
(c) any liability being incurred under the Consumer Protection Act 1987 in respect of the Goods or as a result of any recall of any Goods already sold by E H Smith to its customers under Condition 10 above;
(d) any termination of the Contract pursuant to Condition 14.
11.2 The Supplier shall provide all facilities, assistance and advice required by E H Smith or its insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Supplier's performance, or purported performance of, or failure to perform, the Contract.
12.1 The Supplier shall at its own cost effect and keep in place with reputable insurers such insurance policies as are appropriate and adequate having regard to its obligations and liabilities under the Contract. The Supplier shall on the written request of E H Smith from time to time provide E H Smith with reasonable details of the insurance maintained in force in accordance with this Condition 12, and, on the renewal of each policy, the Supplier shall send a copy of the premium receipt to E H Smith when requested to do so in writing by E H Smith. The Supplier shall do nothing to invalidate any of the policies maintained in force in accordance with this Condition 12.
13 Intellectual Property
13.1 All materials including any Specifications supplied by E H Smith, and any copies made by or for the Supplier shall be the property of E H Smith, shall only be used for the purposes of this Contract, shall be treated by the Supplier as strictly confidential and shall be returned by the Supplier immediately on request to E H Smith at the Supplier's sole risk and cost.
13.2 Any and all Intellectual Property Rights created or acquired in the course of or as a result of any work carried out by the Supplier under or in pursuance of the Contract, shall, from the date of their creation or acquisition by the Supplier belong exclusively, throughout the world, to E H Smith and the Supplier undertakes that, at the request of E H Smith, it will do all such acts and execute all such documents, at its own expense, that may be necessary under the law of any country to ensure a complete and effective assignment to E H Smith of the full right, title and interest to any such Intellectual Property Rights and (if applicable) their registration in the name of E H Smith.
14.1 E H Smith may immediately terminate the Contract without payment of compensation or other damages caused to the Supplier solely by such termination by giving notice in writing to the Supplier if any one or more of the following events happens:
(a) the Supplier commits a breach of any of its obligations under these Conditions which is incapable of remedy;
(b) the Supplier fails to remedy, where it is capable of remedy, or persists in any breach of any of its obligations under these Conditions after having been required in writing to remedy or desist from such breach within a period of 7 days;
(c) the Supplier proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an interim order is made in relation to the Supplier under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by the Supplier or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors; or
(d) the Supplier is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or the Supplier calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or the Supplier presents, or has presented, a petition for a winding up order, or the Supplier presents, or has presented, a petition to appoint an administrator, or any other steps are taken by the Supplier or any other person to appoint an administrator over the Supplier, or the Supplier has an administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets, or the Supplier takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it.
14.2 The termination of the Contract shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
15 Third Parties
15.1 The Contract is personal to the Supplier. The Supplier shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without the prior written consent of E H Smith.
15.2 E H Smith may assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract at any time without the prior written consent of the Supplier.
15.3 Subject to Condition 15.4 below, a person who is not a party to the Contract (including any employee, officer, agent, representative or subcontractor of either party) shall have no right, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce any term of these Conditions.
15.4 Any of E H Smith's customers who purchase the Supplier's Goods from E H Smith or take the benefit of the Services may enforce Conditions 3.3, 4.2, 7, 9.1 and 11.1(a) in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999 subject to obtaining EH Smith's prior written consent (at its absolute discretion) to enforcing the provisions.
15.5 Where a person who is not a party to the Contract (including any employee, officer, agent, representative or sub-contractor of either party) has a right to enforce any term of these Conditions under section 1 of the Contracts (Rights of Third Parties) Act 1999, the parties to the Contract may vary or terminate these Conditions by agreement between them without requiring the consent of that person and need not comply with section 2(1) of the Contracts (Rights of Third Parties) Act 1999.
16.1 The Supplier shall keep and procure to be kept secret and confidential all information disclosed or obtained as a result of the relationship of the parties under the Contract (including information as to the price which E H Smith pays the Supplier for the Goods and the existence of this Contract) and shall not use nor disclose the same save for the purposes of the proper performance of the Contract or with the prior written consent of E H Smith.
16.2 The Supplier shall not exercise any right of lien, general or otherwise and howsoever arising, over any Goods or any other property of E H Smith in the Supplier's possession, in respect of any sums owed by E H Smith to the Supplier under the Contract or otherwise.
16.3 No purported alteration or variation of these Conditions shall be effective unless it is in writing, refers specifically to the Contract and is signed by a duly authorised representative of each of the parties to the Contract.
16.4 The waiver by E H Smith of any breach of these Conditions shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision. Any waiver of any breach of these Conditions shall be in writing.
16.5 If at any time any part of these Conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from these Conditions and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired as a result of that omission.
16.6 Any notice given under these Conditions shall be in writing and delivered by fax, airmail or first class post to the address of the party specified in this Agreement, or such other address as is notified to the other party from time to time.
17 Law and Jurisdiction
17.1 These Conditions and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with, the laws of England and all disputes or claims arising out of or relating to these Conditions shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.
17.2 The United Nations Convention Contracts for the International Sale of Goods 1980 shall not apply to the Contract.