SmartSource Solutions Ltd (registered number 06729870) whose registered office is at President Park, President Way, Sheffield, S4 7UR (“we” or “us”)
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
• the following words and expressions have the following meanings and, in addition, any words and expressions defined in any Condition will have the same meaning when used in any other Condition:
• “Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales
• “Customer” our customers or the purchaser of the Goods
• “Order” our verbal or written acceptance of your quotation for the supply of goods to us
• “Prices” the prices for the Goods set out in your quotation
• “Specification” the written technical specification for the Goods as agreed in the quote or as otherwise set out in writing between the parties
• “you” the person named as the supplier in the quote.
• all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
• references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
• references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
• any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;
• the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general words introduced by the word “other” or a similar word or expression will not be restricted by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
• any reference to:
• time of day is to London time;
• a day is to a period of 24 hours running from midnight to midnight;
• an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party;
• any obligation on a party not to do or omit to do anything includes an obligation not to allow (whether expressly or by a failure to take reasonable steps to prevent) that thing to be done or omitted to be done by any other person.
2. CONTRACT FORMATION
• Your quotation constitutes an offer by you to supply the goods set out in the quotation (“Goods”) to us on these Conditions. A contract for the supply of Goods by you to us on these Conditions (the “Contract”) will be formed when we accept the quotation by issuing the Order to you. For the avoidance of doubt we are under no obligation to accept the quotation.
• These Conditions are the only terms and conditions on which we will purchase goods from you and will apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any quotation, acknowledgement, acceptance or confirmation of order, delivery note, invoice or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
• Delivery of the Goods will be deemed conclusive evidence of your acceptance of these Conditions.
• You may not deliver the Goods by separate instalments unless we give our prior consent to this (whether verbal or written). If we give such consent, you will invoice the Price for each instalment separately in accordance with Condition 3 and we will be entitled, at our sole discretion, to exercise our rights and remedies (whether under these Conditions or otherwise) in respect of the relevant instalment or the whole Contract.
3. THE GOODS
• The quantity and description of the Goods will be as set out in the quotation.
• We have the right to inspect and test the Goods at any time prior to Delivery.
• If, following inspection or testing under Condition 2, we give written notice to you that we are not satisfied that the Goods will comply with Condition 5.1, you will take all steps necessary to ensure compliance. Any breach of this obligation by you will be deemed to be a material breach entitling us to terminate the Contract under Condition 8.1.
• No inspection or testing under Condition 2 will reduce or otherwise affect your obligations under the Contract.
• You will deliver the Goods to the address specified in the Order on the date specified in the Order. You will be responsible for off-loading the Goods from the delivery vehicle. Delivery of the Goods (“Delivery”) will occur when they have been off-loaded at the delivery address.
• You will ensure that:
• the Goods are marked in accordance with our instructions and any applicable laws and any applicable requirements of any carrier and are properly packed and secured so as to reach their destination in an undamaged condition; and
• the delivery is accompanied by a prominently displayed delivery note which shows the type and quantity of Goods, code numbers of Goods (if applicable), any special storage instructions and, where delivery by instalments is permitted under Condition 4, the outstanding balance of Goods remaining to be delivered.
• If you believe that you will be unable to deliver the Goods on the date specified in the Order or if you fail to deliver the Goods on the date specified in the Order then you must notify us immediately and the Customer in question (as applicable) and agree an alternative date with us or the Customer in question (as applicable).
• Risk in and ownership of the Goods will pass to us or the Customer (as applicable) on Delivery.
• You will provide all printing plates, proofs and artwork within seven (7) days of a request by us in a format requested by us in respect of any Goods that we have ordered at no extra charge other than your reasonable delivery charges, even if such request is made after the Goods have been delivered to us or a Customer.
5. DEFECTIVE GOODS
• You will ensure that the Goods will:
• be fit for any purpose held out by you or made known to you expressly or by implication and in this respect we rely on your skill and judgement;
• conform to the Specification;
• be free from defects in design, materials and workmanship;
• comply with all relevant applicable laws and British Standards and the requirements of any relevant statutory and regulatory bodies;
• be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health; and
• be supplied with any warranties that you have communicated to us.
• Without prejudice to any of our other rights or remedies (whether express or implied), if any Goods do not conform with any of the terms of Condition 1 we may (whether or not the Goods have been accepted):
• terminate the Contract immediately by giving written notice to that effect to you; or
• require you, at our option, to promptly repair or replace the relevant Goods free of charge or to refund the Price for the relevant Goods
• and, in either case, we will be entitled to recover from you any and all liabilities, losses, damages, costs and expenses incurred by us as a result of the non-conformity of the Goods.
• Condition 2 will apply to any repaired or replacement Goods supplied under Condition 5.2.2.
• You will indemnify us against all losses (including all direct, indirect and consequential losses), liabilities, costs, damages and expenses that we do or will incur or suffer, all claims or proceedings made, brought or threatened against us by any person and all losses (including all direct, indirect and consequential losses), liabilities, costs (on a full indemnity basis), damages and expenses we do or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with any breach by you of any of your obligations under the Contract (including any failure or delay in performing, or negligent performance or non-performance of, any of those obligations).
• Without prejudice to Condition 1, if any person claims that the possession and/or use and/or sale of the Goods by us and/or our customers, officers, employees, agents or sub-contractors infringes the intellectual property rights of that or any other person (“IPR Claim”), you will indemnify us, our customers, officers, employees, agents and sub-contractors against all losses (including all direct, indirect and consequential losses), liabilities, costs, damages and expenses that we, our customers, officers, employees, agents or sub-contractors do or will incur or suffer, all claims or proceedings made, brought or threatened against us, our customers, officers, employees, agents or sub-contractors by any person and all losses (including all direct, indirect and consequential losses), liabilities, costs (on a full indemnity basis), damages and expenses we, our customers, officers, employees, agents or sub-contractors do or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with that IPR Claim including where they arise from our negligence or the negligence of our customers, officers, employees, agents or sub-contractors.
7. PRICE AND PAYMENT
• Subject to you performing your obligations in accordance with the terms of the Contract, we will pay the Prices to you in accordance with this Condition 7.
• The only monies to be paid by us in connection with the supply of the Goods are the Prices which will be inclusive of all costs and expenses incurred by you including all packaging, insurance, carriage and delivery costs and all travel, accommodation and subsistence expenses.
• You will be entitled to invoice us for the Prices for the Goods following Delivery.
• Subject to Conditions 5, 7.6 and 7.8, each invoice will be payable by us as agreed in writing between the parties.
• No payment made by us will constitute acceptance or approval by us of the Goods or otherwise prejudice any rights or remedies which we may have against you including the right to recover any amount overpaid or wrongfully paid to you.
• If we, on bona fide grounds, dispute any part of an amount invoiced by you (a “Disputed Sum”), we will be entitled to withhold payment of the Disputed Sum until the dispute is settled.
• If any sum payable under the Contract is not paid on or before the due date for payment you will be entitled to charge us interest on that sum at two (2)% per annum above the base lending rate from time to time of Barclays Bank Plc from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis. Such interest will not be chargeable on any Disputed Sum, provided that if it is agreed or determined that part or all of the Disputed Sum is payable, interest will be chargeable on the relevant part of the Disputed Sum in accordance with this Condition 7 but from the date on which payment of that sum is due in accordance with settlement of the dispute rather than from the date on which payment of the original invoice which included that sum was originally due. The parties agree that this Condition 7.7 is a substantial remedy for late payment of any sum payable under the Contract, for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
• We will be entitled to set-off any liability which you have to us against any liability which we have to you, whether such liability is present or future, liquidated or unliquidated, under the Contract or any other contract between the parties or other cause of action and irrespective of the currency of its denomination.
• If you commit a material breach of the Contract we may terminate the Contract immediately by giving written notice to that effect to you.
• We may terminate the Contract immediately by giving written notice to that effect to you if you:
• have a receiver, administrator or provisional liquidator appointed;
• are subject to a notice of intention to appoint an administrator;
• pass a resolution for your winding-up;
• have a winding up order made by a court in respect of you;
• propose or enter into any composition or arrangement with creditors;
• cease to carry on business; or
• take any steps or actions or have any steps or actions taken in connection with any of these procedures; or
• are the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction; and you will notify us immediately upon any occurrence of any such event or circumstance.
• Following expiry or termination of the Contract:
• Conditions 9 and 1011 and any other Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract will continue in force; and
• all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
• Within seven (7) days after the date of expiry or termination of the Contract each party will, subject to the exception set out in Condition 5,
• return to the other party all of the other party’s Confidential Information (including all copies and extracts) and all other property of the other party (whether tangible or intangible) in its possession or control; and
• cease to use the other party’s Confidential Information.
• Each party may retain any of the other party’s Confidential Information which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting or taxation purposes. The provisions of Condition 9 will continue to apply to retained Confidential Information.
• Each party will, and will ensure that its personnel, agents or sub-contractors will, subject to Condition 2:
• only use the other party’s Confidential Information for the purpose of performing its obligations and exercising its rights under the Contract;
• keep the other party’s Confidential Information secret, safe and secure;
• not disclose the other party’s Confidential Information to any other person; and
• notify the other party immediately upon discovery of any unauthorised use or disclosure of the other party’s Confidential Information and will co-operate with the other party in every reasonable way to help the other party regain possession of such Confidential Information or prevent its further use.
• Each party may disclose the other party’s Confidential Information:
• to the extent required by law or any court of competent jurisdiction or the rules of any governmental or regulatory body; and
• to those of its officers, directors, employees and professional advisers and, in our case, our agents and sub-contractors, who need access to that Confidential Information so that it can perform its obligations and exercise its rights under the Contract. A party disclosing the other party’s Confidential Information under this Condition 2.2 will procure that each person to whom it discloses that Confidential Information will not do or omit to do anything which if done or omitted to be done by that party would be a breach of this Condition 9 and the receiving party will take all reasonable measures to avoid disclosure, dissemination or unauthorised use of the Confidential Information, including as a minimum those measures it takes to protect its own Confidential Information of a similar nature.
• For the purposes of this Condition 9, “Confidential Information” means any information (whether written, oral or in electronic form or in any other media) that is disclosed by or on behalf of one party to the other party before, on, or after the date of the Contract and that relates (in whole or in part) to the disclosing party’s or its Customer’s business, promotional and business activities, finances and other business affairs, trustees, employees, members, customers, sponsors, suppliers, costs, trade secrets, data, images, technology and know-how and third party information that the disclosing party is under an obligation to keep confidential, and the terms of or subject matter of the Contract or any discussions or documents in relation to it, but excluding information that:
• is at the relevant time in the public domain (other than by virtue of a breach of this Condition 9);
• was received by the other party from a third party who did not acquire it in confidence; or
• is developed by the other party without any breach of the Contract or these Conditions.
• Each party acknowledges and agrees that damages alone would not be an adequate remedy for breach of this Condition 9 by that party. Accordingly, the other party will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of this Condition 9 by the first party.
• The obligations of the receiving party under this Condition 9 with respect to the other party’s Confidential Information will survive for five (5) years following termination or expiry of the Contract.
• You will not, and will procure that your agents and sub-contractors will not, without our prior written consent, directly or indirectly, and whether alone or in conjunction with, or on behalf of, any other person during the term of the Contract and for a period of eighteen (18) months following the date of the Contract solicit or entice, or endeavour to solicit or entice, away from us any person employed by us. For the purposes of this Condition 10 “solicit” or “entice” means the soliciting or enticing of such person with a view to engaging such person as an employee, director, sub-contractor, consultant or independent contractor or through a company owned by such person or his or her family.
• The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
• neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made by the first party or any other person) which is not expressly set out in the Contract;
• the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
• nothing in this Condition 1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
• A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
• If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
• Save as otherwise expressly provided in these Conditions, no variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
• Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
• Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
• Our customers, officers, employees, agents and sub-contractors will be entitled to enforce Condition 2 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract.
• The parties may vary or rescind the Contract without the consent of our customers, officers, employees, agents and sub-contractors.
• Save as provided in Condition 7, the parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
• Our rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
• You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of your rights under the Contract or to sub-contract any of your obligations under the Contract.
12. GOVERNING LAW AND JURISDICTION
• The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
• Subject to Condition 3, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
• Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.