Terms and Conditions of Sale

The terms and conditions (including the definitions) set out below, apply to all contracts for the sale of Goods by Smith Bros. (Caer Conan) Wholesale Ltd., hereafter referred to as “the Company, whose registered office is at Greyfriars House, Sidings Court, Doncaster, South Yorkshire, DN4 5NU and is registered in the U.K. (Reg.No 267023) (V.A.T. Reg. No. 181321294)

INTERPRETATION
1. In these Conditions the following words shall have the meanings set out below: "Conditions" means the standard terms and conditions of supply of Goods set out in this document "Contract" means a legally binding contract for the sale and supply of Goods and made in accordance with these Conditions. "Goods" means the goods described in the Order. "Order" means an order placed by you for the purchase of Goods. "Price" means the price of the Goods advised to you "Working Day" means any day other than a Saturday and Sunday but excluding bank and public holidays in England. “you” means the person, firm or company who purchases the Goods from us
ACCEPTANCE OF OUR CONDITIONS
1. All orders for Goods supplied by us are subject to these Conditions and the placing of an Order by you will constitute acceptance of these Conditions.
2. Where there is a conflict between these Conditions and any additional terms and conditions, rules and instructions, these Conditions shall apply.
APPLICATION OF TERMS AND BASIS OF SUPPLY
1. Subject to any variation under Condition 3.3 , the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document).
2. No terms or conditions endorsed on, delivered with or contained in your purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
3. These Conditions apply to all our sales and any variations to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by one of our directors.
4. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract or in any confirmation email. Nothing in this Condition shall exclude or limit the Company’s liability for fraud or fraudulent misrepresentation.
5. You shall ensure that the terms of your order and any applicable specification are complete and accurate.
TRADE CREDIT ACCOUNTS
1. To open a trade credit account we will ask you to complete and sign an application for trade credit account form (“Application Form”). The proprietor(s), partner(s) or an authorised employee (if a limited company), must sign the Application Form together with a director or secretary. Until an Application Form has been received and a trade credit account approved (in writing) by us, orders will not be accepted onto the trade credit account until cleared funds have been received. We will treat having received payment by credit card as us having received cleared funds. We reserve the right, in our absolute discretion, to grant, refuse, or discontinue any credit facilities or reduce or suspend any credit limit at any time and demand immediate payment of all monies outstanding.
2. Unless otherwise agreed by us in writing, sums due on a trade credit account are payable by the last Working Day of the month following the month in which delivery of the Goods takes place. If you exceed any agreed credit limit, we may demand immediate payment of all amounts outstanding from you to us on any account.
PRICES AND PAYMENT
1. Where Goods are specially ordered from manufacturers, and a carriage charge is made by such manufacturers, we reserve the right to recover this charge from you in addition to any other charges. You will also pay any additional charges incurred as a result of delivery by any particular method you may request (but we shall be under no obligation to comply with any such request).
2. We reserve the right to levy a handling charge on any orders, the total invoice price of which (excluding VAT) is less than our small order value from time to time.
3. We may request a sum to be paid in advance. Any advance payment made by you at our request shall be held by us as a deposit and not as a part payment. Any deposit is non-refundable in the event of you cancelling the Order, or us cancelling the Order as a result of your default.
4. Time for payment shall be of the essence.
5. No payment shall be deemed to have been received until we have received cleared funds.
6. All payments payable by you under the Contract shall become due and payable immediately on its termination, despite any other provision.
7. In the event of termination, variation or suspension of a Contract on your instruction or by lack of instruction, the Price will be adjusted to reflect the additional costs incurred by us. Where a Price per unit has been quoted and you require a smaller number of units to be delivered than those quoted for, we reserve the right to adjust the Price per unit applicable.
8. You will indemnify us against all costs, losses, damages, expenses and liability including but not limited to all legal expenses and disbursements incurred by us in recovering, attempting to recover or taking advice in connection with the recovery of any amount which is due from you (whether or not recovery is successful) pursuant to these Conditions or otherwise.
DELIVERY & RISK
1. We will advise you of any applicable delivery charge.
2. We will deliver the Goods to the address specified by you in your Order unless we have agreed to make them available for collection.
3. If you fail to take delivery of the Goods on the date notified to you by us, or fail to provide any instructions or authorisations required to enable Goods to be delivered on time, the Goods will be deemed to have been delivered, and risk in the Goods will pass to you on the delivery date and (without prejudice to any other rights we may have) we may:
  1. (a) store the Goods until actual delivery or sale and charge you for all related costs and expenses (including, without limitation, transportation, handling, storage and insurance); and/or
  2. (b) charge you any increase in the Company’s list price for the Goods between the deemed delivery date and the date on which you take physical delivery of the Goods.
4. We will endeavour to deliver the Goods to you in accordance with any despatch date notified to you, or, if none is specified, within seven (7) Working Days of you placing the Order with us or such alternative later date specified by you in your Order but you acknowledge that it may not always be possible to deliver the Goods within this timeframe and you agree that delivery of the Goods may take longer. Any dates or times for delivery of the Goods quoted by us are estimates only. We shall not be liable if the Goods are not delivered within seven (7) Working Days or for any failure to meet any estimated delivery date or for any costs, charges or expenses incurred as a result of any delay. You will not be entitled to refuse to accept any Goods or to cancel the Contract with us merely because of such failure unless any delay exceeds 90 days.
5. We shall be entitled to deliver in instalments. Where the Contract is to be or may be fulfilled in separate instalments, deliveries or parts, payment for each such instalment delivery or part will be made as if the same constituted a separate contract. Failure by you to pay for an instalment in accordance with this Condition will entitle us without prejudice to our other rights and remedies to suspend further deliveries of goods under any other contract we have with you, pending payment by you.
6. Failure by us to deliver any one or more (but not all) instalments in accordance with these Conditions will not entitle you to treat the Contract as repudiated.
7. Risk of damage to or loss of the Goods shall pass to you:
  1. (a) in the case of Goods to be collected , at the time when we notify you that the Goods are available for collection; or
  2. (b) at the time of posting, if you request the Goods to be posted by us to you; or
  3. (c) at the time of us handing the Goods to a third party if you arrange for the Goods to be collected by a third party carrier; or
  4. (d) at the times the Goods are unloaded by our carrier or agent where transportation is arranged by us.
8. You will provide all appropriate equipment and manual labour for off-loading and loading the Goods.
9. Whether we or you arrange for the goods to be transported, the carrier shall be deemed to be your agent except for the purposes of sections 44, 45 and 46 of the Sales of Goods Act 1979.
10. Subject to Condition 12 we shall not replace any lost or damaged Goods after delivery.
PACKAGING
1. The manner of packing and transportation of the Goods shall be at our discretion. No liability shall be accepted for failure to pack to any particular standard, or against any particular risk unless the requirement for such packing is specifically brought to our attention, accepted in writing by us and paid for by you.
2. We may impose additional charges in respect of packaging we use for transportation and delivery of the Goods. Any such charges will be added to the Order and will be shown when you make an Order. For the avoidance of doubt, you agree that such additional charges will be levied in respect of Goods which are despatched in crates, cases or other similar packaging and may be levied at our discretion in the case of any other packaging.
RETENTION OF TITLE
1. Ownership of the Goods will not pass to you until we have received in full (in cash or cleared funds) all sums due to us in respect of the Goods and all other sums which are or which become due to us from you on any account.
2. Until ownership of the Goods has passed to you, you must:
  1. (a) hold the Goods on a fiduciary basis as our bailee;
  2. (b) store the Goods (at your own cost) separately from all other goods owned by you or any third party so that they are identifiable as our property and clearly identified as such;
  3. (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
  4. (d) maintain the Goods in satisfactory condition insured on our behalf for their full Price against all risks without any deductible to our reasonable satisfaction . On request you will produce evidence of the policy of insurance to us;
  5. (e) hold any proceeds of such insurance on trust for us separately from any other money, and not pay the proceeds into an overdrawn bank account or allow any such bank account to become overdrawn; and
  6. allow us access at any reasonable time to enable us to inspect the Goods and verify that you have complied with your obligations under this Condition 8.2
3. You may resell the Goods before ownership has passed to you provided such sale is:
  1. (a) in the ordinary course of your business at full market value and you will account to us accordingly; and
  2. (b) on your own behalf and you deal as principal when making such sale.
4. If we cannot determine which goods are the Goods, you will be deemed to have sold all Goods sold by us to you in the order in which they were invoiced to you.
5. We will be entitled to recover payment for the Goods notwithstanding that ownership of any Goods has not passed from us.
6. We may while we are the owner of the Goods (and without prejudice to any other rights we may have under these Conditions) demand the immediate return of the Goods at any time and you will forthwith comply with such demand and bear the expenses for such return.
7. If you fail to return the Goods in accordance with Condition 8.6, you will be deemed to grant to us (or our successors in title for the Goods) and our respective employees and agents an irrevocable license to enter onto any premises where the Goods are or may be situated for the purpose of removing the Goods (the cost of doing so shall be borne by you) and to sell or otherwise deal with such Goods.

DUPLICATION OF ORDERS
1. Where Orders are sent by post, fax, email in confirmation of a telephone order, you must ensure that they are clearly marked as such, failing which any such confirmation will be treated as a separate Order and you will be obliged to pay for the Goods ordered by each means.
QUALITY
1. You acknowledge that we are not the manufacturer of the Goods. Consequently we will not be liable for any defect in quality of any of the Goods, and our obligations in such respect will be restricted to applying our reasonable endeavours to:
  1. (a) transfer to you the benefit of any warranty or guarantee given to us in respect of the Goods, if requested by you, at your expense; or
  2. (b) make and pursue any available claim under the terms of any warranty or guarantee as mentioned in Condition 10.1 a) subject to you paying all costs and expenses incurred on an indemnity basis in advance of them being incurred, and providing us with such security as we may in our absolute discretion require in respect of the defendant’s costs that may become payable should we lose any dispute. In the event of a claim being made, we will promptly account to you (to the extent of your claim and subject to the deduction of an amount equal to any costs incurred in making and pursuing such claim which you have not already paid) for any proceeds resulting to you.
2. The Goods are not sold by description or sample.
DAMAGE IN TRANSIT AND SHORTAGES
1. The quantity of any consignment of Goods as recorded by us upon despatch from our place of business shall be conclusive evidence of the quantity received by you on delivery, unless you can provide conclusive evidence to the contrary.
2. Where delivery is via our own transport we will not have any liability for short delivery, loss or damage to Goods unless claims to that effect are notified to us in writing within 4 days of delivery’ Goods received in a damaged or unsatisfactory condition may be rejected and returned with our driver.
3. Delivery by third party carrier: We will not have any liability for short delivery, loss or damage to Goods occurring prior to delivery or for non-delivery (even if caused by our negligence) unless claims to that effect are notified to us and our designated carriers within 24 hours of delivery (in the case of damage or short delivery) or within 24 hours of our invoice or advice note (in the case of non-delivery). Goods received in a damaged or unsatisfactory condition must be signed for as such and the packaging and contents must be retained for inspection, failure to do so will invalidate any claim.
4. Subject to Conditions 11.2 and 11.3 our total liability for short delivery, loss or damage to the Goods prior to delivery, or non-delivery of the Goods, shall be limited to (in each case at our discretion) repairing or replacing free of charge Goods within a reasonable time, or refund the Price at the pro rata Contract rate.
RETURNS
1. Goods correctly supplied may not be returned without our written agreement.
2. If Goods have been supplied other than in accordance with these Conditions, they must be rejected within twenty-four (24) hours of delivery (or deemed delivery), otherwise they will be deemed to have been accepted and have been supplied in accordance with these Conditions.
3. Goods returned must be unused and undamaged together with any accessories or items that have been provided free of charge by us, consigned carriage paid accompanied by a packing note stating the Company’s invoice number and date thereof together for the reason for return.
4. If returned Goods had been correctly supplied, the Company may impose a restocking charge. You agree to pay this charge in accordance with our invoice for it immediately on demand.
5. If you paid for the Goods by UK credit card or debit card, and a refund is due as a result of the Goods being rejected in accordance with Condition 12.2 we shall make a refund to the same UK credit card or debit card used for payment
6. If returned Goods (or any of them) are dispatched and subsequently lost in transit the Company will not issue a credit note or refund (where one is due) unless and until the returned Goods arrive at the Company’s premises
CANCELLATION OF AN ORDER
1. We reserve the right to refuse to accept any cancellation of an Order. In the event of any cancellation or other default by you, you must pay all costs, losses and expenses incurred by us prior to the date of cancellation, and you will indemnify us in respect of any third party claims arising directly or indirectly out of any such cancellation.
CERTIFICATION
1. If you require Goods from a quality assured source or certificates of conformity you must specify your requirements in writing at the time of placing the Order.
SAMPLES
1. Any samples provided to you at your request must be returned to us in good condition within ninety (90) days of receipt or such shorter period as we may specify. We may charge the market value of all samples not so returned. Such market value will be the market value on the date when the sample was due to be returned.
2. Samples provided by us shall be subject to these Conditions together with any applicable additional terms and conditions, rules and instructions.
CONFIDENTIALITY
1. You will keep the terms on which you buy Goods from us confidential and will not disclose such information to anyone other than your officers and employees who need to know the same, or as required by any order of a court or the rules of a regulatory

GOODS FOR SALE ARE INTENDED FOR USE BY BUSINESS CUSTOMERS ONLY AND NOT CONSUMERS. YOU CONFIRM THAT ON PLACING AN ORDER YOU ARE PURCHASING THE GOODS FOR BUSINESS PURPOSES ONLY AND YOU ARE NOT PLACING ORDERS AS A CONSUMER.