Home MART SMITHS LIMITED: TERMS & CONDITIONS
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.7.
Contract: the contract between the Supplier 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 Supplier.
Customer’s Products: the print, tags, packing or other products supplied by the Customer in respect of which the Services are to be provided.
Deliverables: the Customer’s Products and/or Goods in respect of which the Services have been (or are to be) provided.
Delivery Location: has the meaning set out in clause 5.1.
Force Majeure Event: has the meaning given to it in clause 12.1.
Goods: the goods (if any) sold by the Supplier to the Customer pursuant to the Contract, and in respect of which the Services are to be provided.
Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form.
Services: the services described in the Order supplied by the Supplier to the Customer pursuant to the Contract.
Supplier: Mart Smiths Limited registered in England and Wales with company number 7571519, and a registered office at Hussains Hall, 38 Devonshire Street, Keighley, West Yorkshire, BD21 2AU.
1.2 Construction. In these Conditions, a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and a reference to a party includes its personal representatives, successors or permitted assigns.
2. BASIS OF CONTRACT
2.1 The Supplier may issue quotations to the Customer either verbally or in writing. All quotations are subject to change at any time and are valid for 14 days from their date of issue. A quotation constitutes an offer by the Supplier to supply Goods and/or Services in accordance with and subject to these Conditions.
2.2 A quotation shall only be deemed to be accepted when the Customer issues a written Order
(which accurately reflects, and does not attempt to change any element of or add any terms to, a valid quotation issued by the Supplier) at which point and on which date the Contract shall come into existence.
2.3 If the Customer issues an Order any part of which is (or any terms and conditions attached to which are) inconsistent with or additional to the provisions of the Supplier’s quotation, that Order shall constitute a counter-offer, which the Supplier may accept subject to these Conditions either (i) by issuing an acknowledgement of the Order (whereupon the Contract will be formed on the date of the acknowledgement) or (ii) by accepting the Customer’s Products for the purposes of performing the Services. Alternatively the Supplier may expressly refuse to contract with the Customer on such basis.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 For all Orders other than repeat Orders from existing Customers, all quotations are issued
SUBJECT TO samples being provided by the Customer (unless otherwise agreed between the parties). If samples are not provided prior to acceptance of the quotation, any Contracts formed in respect of such quotations are therefore conditional upon such samples being provided AND the Supplier confirming their quotation still stands. The Supplier reserves the right to cancel and/or re-issue any quotation following its testing of any such Samples.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the
Customer seeks to impose or incorporate (whether set out in its Order or elsewhere), or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1 The Supplier shall provide the Services to the Customer in accordance with the agreed terms of the Order (subject to the provisions of clause 2) and these Conditions in all material respects.
3.2 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.3 The Customer acknowledges and agrees that:
3.3.1 String colour shall be at Supplier’s discretion unless otherwise agreed between the parties;
3.3.2 Supplier recommends not to use black coloured eyelets on white or light coloured card/tags (because the colour can rub off on to the card/tags).
3.3.3 eyeleting positions cannot be exact and may be subject to minor tolerances (see clause 5.6);
3.3.4 fingerprints on the Deliverables or minor scratches do not constitute a breach of Contract;
3.3.5 the Supplier shall use its reasonable endeavours to colour match, based on images provided by the Customer, but minor deviations in shade constitute acceptable tolerances and shall not constitute a breach of Contract. The Customer shall request up to date shades for all products on each Order.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1 To the extent that any Goods are to be supplied by the Supplier in addition to the Services, the Goods shall be supplied to the Supplier’s standard specifications unless otherwise agreed in writing between the parties.
5.1 The Supplier shall deliver the Deliverables to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Deliverables are ready. Alternatively, the parties may agree that the Customer shall collect the Deliverables from the Supplier's premises within three Business Days of the Supplier notifying the Customer that the Deliverables are ready.
5.2 Delivery of the Deliverables shall be completed (as applicable) on either their arrival at the Delivery Location or the completion of loading of the Deliverables at the Supplier’s premises.
5.3 Any dates quoted for delivery of the Deliverables are non-binding estimates, and are approximate only. Time of delivery is not of the essence.
5.4 If the Customer fails to accept or take delivery of the Deliverables when the Supplier (or a courier on its behalf) attempts to make delivery, or within three Business Days of the Supplier notifying the Customer that the Deliverables are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract:
5.4.1 delivery of the Goods shall be deemed to have been completed at the time of the
Supplier’s attempt to make delivery, or at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Deliverables were ready; and
5.4.2 the Supplier shall store the Deliverables until delivery takes place, and charge the Customer for all related costs and expenses.
5.5 If ten Business Days after the Supplier attempted to make delivery or notified the Customer that the Deliverables were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Deliverables, and shall not be obliged to account to the Customer.
5.6 The Customer acknowledges and agrees to tolerances of up to 10% on all work (including without limitation shades/sizes of eyelets, string, pins, etc).
6. TITLE AND RISK
6.1 The risk in the Customer’s Products shall remain with the Customer at all times (including for the avoidance of doubt whilst on the Supplier’s premises) and the Customer shall insure accordingly. Title in the Customer’s Products shall remain with the Customer at all times.
6.2 Title to Goods supplied by the Supplier shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for those Goods. If the Customer has not paid for the Goods in accordance with the Supplier’s payment terms, the Supplier may at any time:
6.2.1 require the Customer to deliver up all Goods in its possession; and
6.2.2 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. CUSTOMER'S OBLIGATIONS
7.1 The Customer shall:
7.1.1 ensure that the terms of the Order are complete and accurate and do not add to or deviate in any respect from the terms of the Supplier’s quotation;
7.1.2 co-operate with the Supplier in all matters relating to the Services;
7.1.3 provide the Customer’s Products to the Supplier within such timescales as the Supplier may reasonably require, and a reasonable time before the Supplier’s estimated date for completion of the Services;
7.1.4 provide the Supplier with such information and instructions as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
7.1.5 be responsible for ensuring the Customer Products delivered to the Supplier are correctly identified in their packaging (and the Supplier shall not be liable if the contents of such packaging does not match the description on the packaging).
7.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
7.2.1 the Supplier shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
7.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the
Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 7.2; and
7.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8. CHARGES AND PAYMENT
8.1 The price for the Services (and, if applicable the Goods) shall be the price set out in the
Order (provided it accurately reflects the Supplier’s quotation to which it relates) or the Supplier’s quotation or, if no price is quoted, the price set out in the Supplier's published price list as at the date of delivery. The price is exclusive of all costs of carriage and VAT, which shall be paid in addition by the Customer at the applicable rates from time to time. For the avoidance of doubt, repeat orders constitute separate Contracts and the Supplier reserves the right to increase its prices between such repeat orders. All prices are based on 20cm flat length of string (if applicable).
8.2 The Supplier reserves the right to:
8.2.1 charge a minimum order fee;
8.2.2 increase the price by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Services/Goods that is due to:
188.8.131.52 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
184.108.40.206 any request by the Customer to change the delivery date(s), Services or Goods or quantities or if there is more than one design in issue, which was not apparent when the Supplier issued its quotation; or
220.127.116.11 any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services.
8.3 The Supplier may require payment in advance of commencing the Services, in which case the Supplier will issue a pro-forma invoice, which the Customer must pay on the date of the invoice (and the Supplier shall not be obliged to commence any of the Services until it has received such payment in full, cleared funds).
8.4 Subject to clause 8.3, if payment in advance is not required by the Supplier, the Supplier shall invoice the Customer on or at any time after completion of delivery. Time for payment shall be of the essence of the Contract. The Customer shall pay each such invoice submitted by the Supplier:
8.4.1 within  days of the date of the invoice; and
8.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier.
8.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above HSBC Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or other information which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause shall survive termination of the Contract.
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 Supplier's liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 any other terms that cannot lawfully be excluded.
10.2 Subject to clause 10.1:
10.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 for the avoidance of doubt, the Supplier shall not be responsible for or liable for any fault in the Deliverables that is caused by any Customer Default, or any fault in the Customer’s Materials; and
10.2.3 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price payable by the Customer in respect of the Contract.
10.3 All warranties implied in respect of the Services and Goods are, to the fullest extent permitted by law, excluded from the Contract.
10.4 If the Customer claims that Services have not been provided in accordance with the
Contract, the Customer shall return the Deliverables in issue at its own cost to the Supplier, for assessment by and discussion with the Supplier. Any such claim must be made within 5 days of receipt by the Customer of the Deliverables. Any physical damage to the Deliverables must be notified to the Supplier within one Business Day.
10.5 This clause 10 shall survive termination of the Contract.
11.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
11.1.2 the other party convenes a meeting of its creditors or makes or proposes any arrangement or composition with, or any assignment for the benefit of its creditors; or
11.1.3 an order is made by a court of competent jurisdiction or a resolution is passed for the dissolution, winding-up or administration of the other party (other than due to a solvent restructuring); or
11.1.4 if a trustee, receiver, administrator or other similar officer is appointed in respect of all or any part of the other party’s business; or
11.1.5 the other party is or becomes unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986; or
11.1.6 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.1.7 the other party (being an individual) is the subject of a bankruptcy petition or order;
11.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
11.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of
Services if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 11.1.2 to clause 11.1.7, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
11.4 On termination of the Contract for any reason:
11.4.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
11.4.2 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
11.4.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. FORCE MAJEURE
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier.
12.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or
Goods for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
13.1 Assignment and other dealings.
13.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
13.2.1 Any notice or other communication given to a party under or in connection with this
Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
13.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
13.3.1 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.
13.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
13.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing by the Supplier, and the Customer has issued a new Order in accordance with the provisions of clause 2.
13.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
13.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).