In these Terms & Conditions
1.1. ‘Company’ means SMS Machine Automation Ltd.
1.2. ‘Buyer’ means the person buying the goods or services from the Company.
1.3. Unless otherwise agreed in writing all offers are accepted and all goods are sold subject to and upon these Terms and Conditions of Sale and which the Buyer shall be deemed to have adopted as the Buyer’s Standard Terms and Conditions of Business. The Company does not contract on Buyer’s Terms and Conditions and any acceptance or counter-offer by the Buyer following an offer by the Company shall be deemed to have made on the understanding that these Terms and Conditions shall apply to any contract, subsequently concluded to the exclusion of any other Terms and Conditions to which such acceptance or counter – offer may have been expressed to be subject or which might otherwise apply.
1.4. Any typing, clerical or other error or omission within any sales literature, price list, invoices, despatch notes or any other official documentation, or any other information issued shall be subject to correction without any liability whatsoever on the Company’s part.
1.5. All Buyer orders shall be provided in writing with a Purchase Order Number. It is the responsibility of the Buyer to ensure that all other details given to the Company are correct.
1.6. No waiver, alteration or modification of any of the provisions on the face or reverse hereof or any statement or representation shall be binding unless in writing and signed by a Director or the Secretary of the Company and attached to or endorsed on the order accordingly.
2.1. Prices are the prices quoted herein and are for the quantity mentioned and any reduction when ordering may have a consequential effect on the price.
2.2. Quotations are subject to acceptance within 30 days from the date of quotation.
2.3. The Company’s prices are those prevailing at receipt of order at the Company’s premises and are ex-works. Such prices do not include VAT or any other tax, levy or duty, which will be charged extra.
2.4. In the event of any increase in the current or ruling price of the goods between the date of quotation of contact and the date of delivery, whether by reason of increases in the manufacturers, distributors or suppliers price or the company’s increase in prices, or for any reason whatsoever the right is reserved to increase the price of goods and any such increase shall be payable by the buyer.
2.5. Trade benefits in the form of discounts will be subject to agreement.
2.6. All export prices are F.O.B. Factory in Barnsley, South Yorkshire, UK and are exclusive of packing, unless other wise stated.
2.7. In the case of a project which is to be carried out by the Company in stages and where a delay of more than two months occurs between any two stages occasioned by instruction or act or omission of the Buyer, the Company may at its discretion withdraw from the contract for the remaining stage or stages but shall be entitled to payment of such amounts as are set out 2.8 below.
2.8. Variations or changes in specification requested by the Buyer will be charged for on terms to be agreed in advance with the Company or otherwise on terms no less advantageous to the Company than in the original contract. The Company shall be entitled at any time in its discretion and without any liability in respect thereof to refuse to agree to any requested variation. The Buyer agrees to meet the costs of any additional work required to accommodate a variation or change in specification.
3. TRAVELLING EXPENSES
3.1. All travelling, subsistence and out of pocket expenses incurred by the Company or its appointed agents in fulfilling the contract will be charged to the Buyer in addition to the quoted fee, unless expressly included therein.
4.1. All carriage charges will be met by the Buyer.
5. SETTLEMENT TERMS
5.1. If the buyer shall fail to pay any amount when due or if the buyer shall fail or refuse to accept delivery of any goods or to give delivery instructions when the goods are ready for collection or despatch or (if the buyer is an individual) if the buyer dies, is incapacitated, has bankruptcy petition or order presented or made against him of makes or seeks to make any composition or arrangement with the creditors or any of his property is taken in execution or process of law or (being a limited company) a petition is presented or an order made for winding up of the company, a petition is presented or an order is made for an administration order, a receiver or administrative receiver is appointed over any or all of the buyers assets, or the buyer makes or seeks to make any composition or arrangement with its creditors then the purchase of all goods invoiced or despatched by the company shall become immediately due and payable by the buyer and the company shall, in its absolute discretion be entitled to treat as cancelled every contract made with the buyer or, at the company’s option to suspend or continue the delivery of goods without prejudice to any other rights of the company.
5.2. Interest shall accrue on all sums due and outstanding rate of 4% p.a. above the HSBC base rate from time to time from the due date until payment in full.
5.3. The buyer shall not be entitled by reason of any dispute relating to the goods or any claim by the buyer under this or any other contract to withhold payment of any amount which is due to the company hereunder or to set off against any such amount or payment any cross-claim whether liquidated or unliquidated for any sum or sums for which the company does not admit liability.
5.4. The company reserves the right in its absolute discretion to refuse to execute any order or contract if the arrangements for the credit of the buyer appear to be or to become unsatisfactory.
5.5. Any dispute concerning payments must be notified to the company credit controller in writing within fourteen days of the date of the first statement following the invoice therefore and unless so submitted such statements and the invoice shall be deemed to be correct.
6. RETENTION OF TITLE
6.1. The risk in the goods and all the liability to third parties in respect thereof shall (where carriage is arranged by the buyer) pass to the buyer immediately upon delivery to the carrier or (where carriage is arranged by the company) immediately upon delivery to the buyer (save for export orders where risk shall pass to the buyer upon delivery of the goods to the carrier at the relevant port) but property and legal title in the goods shall pass to the buyer only on payment in full of all funds payable to the company in respect of such goods and all other goods or services sold or supplied to the buyer under any other contract.
6.2. The buyer shall, at all times, prior to full payment for the goods or products, store the goods or products referred to in 5.1 above in such a way that they are clearly identified as being the property of the Company and referable to each particular invoice.
6.3. Failure to pay the full amount due shall give the Company the right (without prejudice to any other right it may have) to repossess the goods at the Company's absolute discretion and the Buyer hereby irrevocably authorises the Company, its servants or agents, to enter on any land or premises upon which the goods are situated using force as necessary to give effect ere to. All goods supplied by the Company in the Buyer's possession shall be presumed to the Company (unless the Buyer can prove otherwise).
6.4. The Buyer shall not be entitled to sell, transfer, charge or otherwise dispose of the goods until such time as payment in full has been made except on the following conditions.
6.4.1. The Buyer shall hold all monies it received for such goods on trust for the Company and shall account immediately to the Company for all such monies to the extent of it indebtedness to the Company and shall nevertheless hold such monies in a separate account to identify them clearly as being the property of the Company.
6.4.2. The Buyer shall keep full and property records of all goods sold in which the Company has retained property and of all monies received thereof.
6.4.3. The Buyer shall not hold all such goods as bailee for the Company.
6.4.4. The Buyer shall insure with a reputable insurance company any goods which are the property of the Company which are in the Buyer's possession for the full replacement value and the Company shall on demand be entitled to inspect all insurance documents and receipts in respect thereof and the Buyer shall account to the Company for any insurance proceeds it receives for the goods.
6.4.5. The Buyer hereby assigns any rights of action against a third party in respect of any money due for the goods and the Company will account to the Buyer for any monies received from the third party after the deduction of that due for goods supplied by the Company to the Buyer.
6.5. The Buyer's rights under clause 6.4 shall cease if an event specified in clause 5.1 happens to the Buyer.
7. GOODS ON LOAN
7.1. Goods are lent to the Buyer or otherwise delivered by the Company to the Buyer and the Buyer hall be absolutely liable for all and any loss or damage to the goods or part thereof howsoever caused and regardless of whether or not such loss or damage was due to the negligence of the Buyer, as such liability arising immediately the goods are delivered to the carrier and continuing until and unless the Buyer returns the goods to the Company and the Company has certified as having received those goods in good condition at its premises.
7.2. If such loss or damage occurs then the Buyer agrees to pay the Company on demand in the Company's absolute discretion either the full cost to the Company of putting the goods into such state of good repair that the goods can be sold as new or the price of the goods as stated in the Company's current price list together with all costs, claims and liabilities incurred by the Company.
7.3. It shall be the responsibility of the Buyer to return any such goods to the Company's premises and to pay the cost of carriage and packing in respect of such return.
8.1. Delivery dates are approximate and the Company will at all times use its best endeavours to comply. The Company, however, shall not be liable for any loss, penalties or damage direct or indirect, occasioned by delivery and, in no case shall delay be a ground for rejecting goods.
8.2. All offers of goods from stock are subject to the goods remaining unsold at the time of receipt of order.
8.3. Where the Buyer specifies periodic delivery, the final delivery must be due within twelve months of the order being placed.
8.4. Where a period is stated for delivery and such a period is not extended by mutual written consent then the Buyer shall take delivery within that period.
8.5. Where delivery of the goods is delayed at the request of the Buyer or the Buyer is for any reason whatsoever unable to take delivery (such failure not being due to any fault or neglect on the part of the Company) the Company shall be entitled to charge the Buyer the actual or estimated cost of storing such goods whether or not stored at its own premises and without prejudice to any other claim it may have.
8.6. Without prejudice to the generality of clause 8.1, the Company shall have no liability for any expenses losses or damages caused by delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of plant or machinery, failure of raw material or supply of raw material, inability to obtain sufficient labour or sufficient skilled labour or any other cause or causes beyond the reasonable control of the Company.
8.7. The Company reserves the right to make part deliveries and to submit invoices for goods supplied as part of an order.
9. RETURN OF GOODS
9.1. No goods may be returned for credit without prior agreement being obtained from the Company. The Company reserves the right to apply a re-stocking charge if goods are returned when agreed with the Company.
9.2. Cancellation of orders, which have to be made up specially (whether catalogued or otherwise), cannot be accepted. Orders for goods, which are not current standard products, are only accepted on the condition that cancellation or return be accepted by the Company.
10.1. Without prejudice to the operation and effect of any other of these Conditions where the Company makes delivery of any goods which are defective or otherwise not in accordance with the Contract the Company's liability shall be limited to an obligation, at its expense, as it shall in its absolute discretion decide, either (i) to repair or rectify the said goods, or (ii) to replace the said goods with goods which are in accordance with the Contract, or (iii) to credit the purchase price against a re-delivery of the said goods provided that the Company shall be under no liability if:-
10.1.1. The goods have not been used or maintained reasonably or properly or
10.1.2. The goods have been used otherwise than in single shift working or
10.1.3. The Buyer has itself (or by a party not approved or authorised by the Company) executed or attempted to execute repairs or alterations to the goods or their installation or
10.1.4. The goods were sold as second-hand or reconditioned.
10.1.5. Notice of the defect is not given to the Company within the warranty or guarantee period specified for the goods by the manufacturer of the goods (or if there is no such period within 12 months of delivery) or otherwise is not given in accordance with the manufacturer's warranty or guarantee (if any).
10.2. The Company does not exclude liability for death or personal injury to the extent that it results from the negligence of the Company's employees, agent or sub-contractors in respect of which as a matter of Law the Company would be liable.
10.3. Where any goods are delivered that do not comply with contract the Buyer shall prior to making any claim for damages or compensation on the Company afford the Company a reasonable time and opportunity to act in accordance with sub clause 10.1.
10.4. To the extent that the Company is held liable to the Buyer for any breach of contract or tort or other act, default, omission or statement the Company's liability for the same shall not exceed the sum insured by the Company at the date of the contract for product liability. This restriction does not apply to any liability under clause 10.2.
10.5. The Buyer warrants that the goods will not be used unless and until the Buyer shall first have applied or taken all such protective or precautionary measures or applied all such warnings, notices, statements or makings or taken all such other precautions of whatsoever nature as may be required by law or as may be necessary or appropriate to preclude the making of any claim by any person who may use the goods or be affected on the grounds of the absence thereof.
10.6. The Buyer shall indemnify the Company against all claims proceedings costs or expenses, which the Company may sustain by reason of any breach of this warranty.
10.7. Insofar as the Company may have the benefit of any guarantee or warranty given by any manufacturer of the goods or other third party the Company will at the request of the Buyer use all reasonable efforts to ensure that so far as may be practicable the benefit of such guarantee or warranty ensures to the Buyer and will at the Buyer's request execute an assignment of the benefit thereof to the Buyer.
10.8. Without prejudice to the operation and effect of any other of these Conditions, where goods are manufactured to design or specifications other than those of the Company then the Company's warranty is limited to the materials and workmanship of the Company which are to be of a reasonable standard in all the circumstances.
10.9. The Company cannot be held responsible for errors in drawings or samples after they have been approved by the Buyer.
10.10. If any contract entered into by the Company includes the supply of computer software then it shall be a term of that contract that the Buyer (I) immediately enters into a licence on the terms of the appropriate standard software licence supplied by the supplier and (ii) the Buyer shall not take any copies or back-ups of any sort of such software; and (iii) the Company shall have no liability whatsoever in respect of the functionality or otherwise of the software and the Buyer shall rely exclusively on any guarantee or warranty given by the supplier of the software except where the Company loads the software onto any hardware in which case if the software is not properly loaded the Company’s liability will be limited to a reloading of (or if necessary replacing) the software.
10.11. To the extent allowed by law, the Company's obligations and liability specified under these conditions shall be to the execution of all other liability to the Buyer and all other warranties, conditions, statements, express or implied, statutory or otherwise and whether contained in the Company's literature or otherwise are hereby excluded and in particular, the Company gives no warranty regarding the fitness for purpose, performance use, nature or quality of the goods.
10.12. Without prejudice to the terms of this clause 10, the Company shall not, in any event, be liable to the Buyer for the loss of profit, business, contracts, revenue or anticipated savings, wastage of goods, loss of machine time or production time, wastage of labour, warehousing or transportation or any special, indirect, consequential or economic loss or damage of any nature.
10.13. The Buyer shall fully indemnify the Company against all losses, damages, costs, actions, claims, demands, fees, and other expenses (legal or otherwise) the Company may incur in consequence of the goods being (whether in whole or in part and directly or indirectly) involved in a claim under the Consumer Protection Act 1987 except to the extent that the alleged defect in the goods the subject of such claim was directly caused by an act or omission of the Company.
10.14. Without prejudice to the operation and effect of any other of these conditions the Company shall not be liable if the functionality of configurations of the goods do not meet the Buyer's requirements or specifications.
10.15. If any exclusion or limitation of liability or any other provision contained in the Contract is held invalid under any applicable statute or rule of law, it shall to that extend be deemed omitted, but if the Company thereby becomes liable for any liability which would otherwise have been excluded or limited, such liability shall be subject to the other exclusions limitations or provisions set out in this clause 10.
11. BUYER'S WARRANTIES
11.1. The Buyer shall hold the Company harmless against loss, damages, or expense resulting from infringement of patents or trademarks or any other intellectual property rights arising from compliance by the Company with Buyer's design, specification or instructions.
12.1. The Company reserves the right to select methods of packaging and shipment.
12.2. When necessary to use wooden cases, these will be charged at cost and are non-returnable.
12.3. If National Carrier's hire fee be charged to the Buyer.
12.4. The Company shall not be responsible for non-delivery of the whole of a consignment or any package forming part of a consignment unless the Buyer notifies the Company and the carriers within ten days of the despatch note or invoice date. In the case of goods damaged in transit or loss from a package or unpacked consignment, the Company shall not be responsible unless the Buyer notifies the Company and the carriers within ten days of receipt of the consignment. In the case of parcel post, the Company shall not be responsible for loss of a whole parcel, unless the Buyer notifies the Company within three days of the despatch note or invoice date.
12.5. Where the goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
13. INTERPRETATION OF CONTRACTS
All contracts for sale of goods or services will be interpreted in accordance with English law and both parties hereby submit to the exclusive jurisdiction of the English Courts.
13.1. Contracts of up to 1 year duration. The cost to the Buyer shall remain fixed in the amount of the quotation issued by the Company to the Buyer and accepted by the Buyer, save for any additional costs required to be incurred by the Company in fulfilling the contract which neither the Company nor the Buyer could have reasonably foreseen at the date of the quotation. Such costs shall be charged as an additional cost to the Buyer but the Company shall not incur such costs without first informing the Buyer of the same and obtaining the Buyers instructions to incur such costs.
13.2. Contracts exceeding 1 year in duration. In the event of the contract being for a period in excess of one year, the contract shall be reviewed by the parties in the tenth month of each twelve month period o f the contract for the purpose of discussing any modifications to the agreed programme and any consequential adjustments to the price payable in respect of the contract. In such review the Company will advise the Buyer of costs which have changed in that period, and the parties shall discuss adjustments to the price payable in respect of the contract to take account of those changed costs.
13.3. Alterations in order regulations and by-laws applicable to the contract. In the event of the parties being unable to agree on any price adjustments, the Company shall be entitled to terminate the contract by written notice to recover such costs.
13.4. The contract may be terminated immediately by the Company or by the Buyer, or by mutual consent, if either party gives written notice to the other that in their opinion the object of the contract is not achievable by the agreed programme or in the event of breach of contract by either party or if either party becomes insolvent or in the event of a force majeure. The provisions of the Clause 13.4 shall be subject always to a dispute resolution procedure if the parties should disagree.
13.5. In the event of the contract being determined pursuant to the provisions of these terms and conditions by either party of by mutual consent, the Buyer shall reimburse the Company or its agents for all work done prior to the effective date and shall meet for the duration of the original contract period the full costs of any of the Company’s staff specifically recruited by the company for the period of the contract (provided always that in the event that the Company is able legally and properly to terminate fixed term contracts of the Company’s staff recruited by the Company for the contract, the Company will do so and the said full costs will be reduced accordingly.
13.6. The Buyer acknowledges and agrees that any claim it may have in relation to the contract or anything connected therewith would be against the Company and that staff employees and the agents of the Company shall in their personal capacities be in no way liable in respect of such claim.
14. COMMENCEMENT AND COMPLETION
14.1. Unless otherwise agreed the work required under the contract will commence as soon as may be reasonably practicable after acceptance in writing by the Buyer of the Company’s written quotation.
14.2. At its discretion the Company shall be entitled to subcontract elements of the work to be performed under the contract.
14.3. Whilst the Company will use every endeavour to complete the said work required by the date specified in the quotation, time of completion shall not be of the essence of the contract. The Company shall not be liable for any loss to the Buyer of any nature occasioned by any delay in completion (however caused).
15.1.Whilst the Company will maintain contact with the Buyer throughout the term of the contract, no statement made by any members of the Company’s staff or other persons engaged by the Company shall be binding on the Company unless and until it is confirmed in writing by the Company.
16.1.The Company shall be relieved of all liability whatsoever, and to the extent to which fulfilment is prevented, frustrated or impeded as a consequence of conforming to any statute, or any rule, regulation, order or requisition made thereunder, or by any cause beyond its reasonable control.
17. CONFIDENTIAL INFORMATION
17.1. The parties and their employees undertake to hold as confidential all disclosures of a technical nature made to them by the other party in the course of setting up or progressing the contract.
From this shall be excluded:
a. Information which is in the public domain.
b. Information which comes into the public domain or is otherwise received by either party in good faith from a third party.
c. Information which either party can reasonably prove was in its possession at the time of the disclosure.
d. Information which is disclosed by order of a court of law.
18. CONSEQUENTIAL LOSS (THIRD PARTY)
The Buyer shall satisfy themselves as to the fitness for purpose and safety of all processes, procedures, machinery, and prototypes recommended by the Company, and machines apparatus and equipment made from drawings and designs submitted by the Company in connection with the contract. The Company shall not be liable for any claims for damages, consequential loss, loss of profits or be called upon to indemnify the Buyer against claims by other parties in respect of non-delivery, delay in delivery or defects or errors in the work undertaken by the Company. The Company shall not be responsible for any loss, damages, expenses or injuries howsoever occasioned to or sustained by any person or any property caused by or in any way arising out of the use of any equipment or any part thereof designed, manufactured or supplied by, or on behalf of, or at the direction of the Company provided that the Company does not seek to exclude liability for death or personal injury caused by the negligence of the Company.
19. DRAWINGS, MODELS AND EQUIPMENT
19.1. Any drawings, models or other matter submitted to the Buyer before contract are confidential and are provided to show approximately the Company’s proposals. They must not be shown produced or copied to any third party or used for any other purpose whatsoever. They will remain the property of the Company and must be returned on request.
19.2. All models or experimental equipment or other items of whatever nature provided at the expense of the Company and used during the course of the work remain the property of the Company unless otherwise specifically agreed.
20. OWNERSHIP OF RIGHTS
20.1. All rights to intellectual property (including but not limited to copyright, letters patent and registered design) arising from the work that is the subject of the contract shall become the sole property of the Company unless agreed otherwise in writing.
21. HEALTH AND SAFETY AT WORK ACT
SMS Machines and Automation Ltd products when used in normal or prescribed applications within the parameters set for mechanical and electrical performance in the technical data provided for each product range, will not cause any danger or hazard to health or safety if normal engineering practices are observed and they are handled/used in applications by trained/skilled persons in accordance with the relevant legislation, regulations (including I.E.E. wiring regulations) and the accepted rules or art for the industry concerned.
In the interest of Health and Safety, products should not be handled whilst 'live'.
Terms and conditions are subject to periodic change.