Terms and Conditions
1 Terms of Business
(A) All contracts for the sale of goods by Smartune are made subject to these Conditions and where applicable to the written terms of any quotation. Provided that where a customer is dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) in relation to a contract for the sale of goods Condition 18 below shall not be incorporated in that contract and Condition 17 shall only have effect as regards that contract subject to sub-clause (A) thereof and the statutory rights of such customer in relation to that contract shall not be affected.
(B) No other terms conditions or representations will be incorporated into a contract unless made in writing and signed on behalf of Smartune.
(C) All quotations by Smartune are deemed to be invitations to purchase. All orders made by the customer must be in writing and contracts shall only be made upon acceptance of the customer’s order by written acknowledgement of order from Smartune or by dispatch of the goods whichever is earlier
(A) All prices for goods supplied by Smartune are ex-works.
(B) Smartune reserves the right to add packaging charges to goods sale invoices.
(C) Smartune reserves the right to add carriage, insurance, freight documentation and any clearance costs to goods sale invoices or at its choice pass any or all of these costs forward to the customer.
(D). In the event of any unforeseen change in these costs Smartune reserves the right to change its prices accordingly.
(A) Unless otherwise agreed Smartune supplies goods to trade customers on the basis of payment of 50% as a deposit with order and payment of any balance due before shipment or on delivery.
(B) Where credit terms are agreed by Smartune, payment shall be made by the due date. Commencement of any credit term agreed is the date of the relevant goods sale invoice.
(C) Time for payment shall be of the essence of the contract. Where payment is not made by the due date Smartune reserves the right without prejudice to its other remedies to charge interest from the due date on outstanding amounts at a rate of 1.5% per month or 3% per annum above the base rate of Barclay Bank plc from time to time in force whichever is the greater until payment is made. For the purposes of these terms ‘payment’ means receipt of value to Smartune account enabling Smartune to deal freely with the amount received.
(D) Where Value Added Tax is chargeable on goods sale invoices Smartune will not accept non-payment of Value Added Tax against promises of future production of proof of export. Smartune will refund to the customer the Value Added Tax element of goods sale invoices within 30 days of receipt by Smartune of proof of export (in a form acceptable to H.M. Revenue and Customs) provided that at the time of the making of the contract the customer informs Smartune that the goods are ultimately to be exported and provided that proof of export is submitted to Smartune within 3 calendar months of the original goods sale invoice for the supply of those goods.
(A) If no time for delivery is specified in the contract the customer shall be bound to accept the goods when they are ready for delivery by Smartune.
(B) Smartune will make all reasonable efforts to effect delivery of goods within the time or by the dates stipulated in quotations but these times and dates are given and intended only as estimates and Smartune shall not be liable for any loss or damage indirect or direct caused to the customer by late delivery.
(C) Delivery times or dates stipulated by Smartune in any quotation may at Smartune discretion be made subject to the performance by the customer or specific actions as defined in the particular quotation.
(A) All goods supplied by Smartune under these terms of business are warranted against failure due to faulty workmanship or materials for 12 months from the sale invoice date. This warranty is subject to the proper and reasonable use by the customer of any products/services supplied by Smartune. Where goods are predetermined as ‘prototype’ or development models by Smartune no such warranty will apply.
(B) Smartune shall not be liable for any claim in respect of its warranty until and unless payment in full has been made for any goods subject to such claim.
(C) Any claim by the customer in respect of Smartune warranty shall be notified in writing promptly to Smartune
(D) Where a customer is dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) this Condition shall not in any way restrict or exclude the statutory rights of that customer in relation to goods supplied to it by Smartune.
Notwithstanding the provisions of Condition 7 below risk in the goods passes to the customer on delivery.
7 Passing of Property
(A) Smartune shall retain full legal and beneficial interest and title to the goods the subject of a contract (“the goods”) until payment in full thereof by the customer.
(B) Pending payment in full of the purchase price the customer shall (a) store the goods separately or in such a way that they are clearly the property of Smartune and (b) keep the goods fully insured against all usual risks at the customer’s expense and procure that Smartune interest is noted on the policy. The customer shall hold the proceeds of any insurance claim (to the extent of the customer’s outstanding liability to Smartune) on trust for Smartune in a separate designated account.
(C) The customer shall be entitled to resell the goods to third parties provided that the customer shall remain fully accountable to Smartune for the goods and shall hold the proceeds of sale (to the extent of the customer’s outstanding liability to Smartune) on trust for Smartune in a separate designated account and shall when payment is due promptly remit all such proceeds to Smartune until payment in full of all sums (including interest) due for the goods.
(D) For the purposes of this Condition only where there is doubt as to whether any payment made by the customer to Smartune is made in or towards satisfaction of the purchase price of goods then such payment shall be deemed to have been made in payment for particular goods by reference to the date order of Smartune outstanding invoices delivered to the customer taking the earliest dated invoice first.
If in relation to any contract
(a) payment in full is not made by the due date; or
(b) the customer commits any other substantial breach of the contract or makes or offers to make any composition with creditors or commits any act of bankruptcy or if (the customer being a company) any resolution or petition to wind up the business of the customer is passed or presented (other than for the purpose of a bona fide amalgamation or reconstruction) or if a receiver of the undertaking or assets of the business of the customer or any part thereof is appointed then Smartune shall be entitled
(i) to recover damages in respect of any loss or damage caused by the breach by the customer and/or
(ii) to retain any deposit paid.
(iii) to cease work on the contract in question and any other contract with the customer and to cease making deliveries to the customer of any goods whether under the contract in question or any other contract and/or
(iv) to cancel the contract and remove and sell the goods and apply the proceeds of sale and any deposit received towards satisfaction of the customer’s liability to Smartune under the contract and/or
(v) to call on the customer to deliver up to Smartune all goods in the power custody or possession of the customer in respect of which property is vested in Smartune whether by virtue of these Conditions or under the general law and the customer hereby allows Smartune to enter the premises of the customer where such goods are situated for the purpose only of taking possession of such goods.
9 Force Majeure
Any contract may be cancelled or suspended in whole or in part by Smartune without liability on its part for any loss or damage arising directly or indirectly from such cancellation or suspension in consequence of the prospect happening or result of any industrial dispute, Act of God, war, civil commotion, legislation, breakdown of machinery, inability to obtain supplies,
Smartune shall not be deemed to have waived the protection of any of these Conditions by reason of any indulgence given to the customer.
11 Law and Disputes
These Conditions and any contract between Smartune and the customer shall be governed and construed in accordance with the laws of England and the customer and Smartune shall submit to the jurisdiction of the English Courts. If any part of these Conditions is rendered void or unenforceable at law that part shall be severable from the remainder of these Conditions which shall remain in full force and effect.
If the customer supplies Smartune with a design or any other instructions in accordance with which the goods specified in the order are to be manufactured then the customer shall indemnify Smartune against all damages costs and expenses arising out of any claim for infringement of any copyright patent trade mark registered design or similar right of any third party.
Where a contract has been made between the parties and the customer subsequently cancels or postpones its order or otherwise terminates its agreement with Smartune the customer shall compensate Smartune to the extent of all costs or charges incurred by Smartune by way of the cancellation or postponement or, at its option Smartune may instead retain any deposit paid. For the removal of doubt these costs include the cost to Smartune of any special tools or services purchased by Smartune and any finished product manufactured by Smartune in order to fulfill the customer’s order. Should Smartune be able to dispose of these items subsequently then the customer (provided that it has compensated Smartune pursuant to this Condition) shall be credited with the amount received.
(A) Any limitations of liability contained in this Condition shall not apply where Smartune is held to be liable to a customer dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) for the breach of any condition implied by statute and accordingly the statutory rights of consumers shall remain unaffected by this Condition.
(B) Except in the case of death or personal injury resulting from Smartune negligence the liability of Smartune to the customer whether in respect of negligence, breach of contract, misrepresentation or otherwise howsoever shall not in any case exceed the price of the goods supplied to the customer under the contract and except as aforesaid the customer shall indemnify Smartune against all liability to any third party.
(C) Smartune shall not be liable (and the price if unpaid shall remain payable) for any loss of or damage to goods in transit unless the succeeding terms of this Condition are complied with.
(D) Any claim by the customer in respect of non-delivery of the whole or part of any consignment shall be made in writing to Smartune within twelve days of the date of the relevant sale invoice or receipt of the consignment as the case may be.
(E) Any claim by the customer in respect of damage in transit shall be notified both to the carrier and Smartune in writing by the customer (otherwise than on the carrier’s documents) within 5 days of the delivery of the consignment to which the claim relates. The customer shall not receipt the carrier “in good condition” if there is any evidence of injury to packaging or contents upon the customer’s reasonable inspection on delivery but shall give a receipt according to the facts which its own examination discloses.
(F) In the case of loss of or damage to goods in transit Smartune shall not in any event whatsoever be liable to the customer beyond the amount which Smartune is able to recover from its insurers, carriers or other third parties.
(G) Smartune shall not be liable for any indirect or consequential loss whatsoever, however arising and in particular but without prejudice to the generality of the foregoing shall not be liable for any injury loss expense or damage existing out of the storage application or use of any goods supplied.
(A) All express or implied terms conditions representations or warranties not stated in these conditions and capable of exclusion (whether statutory or otherwise) are hereby excluded.
(B) Notwithstanding that any item of the goods has been shown or supplied to the customer no contract shall constitute a sale by description or by sample.
(C) Smartune gives no warranty as to the quality or fitness for any particular purpose of the goods other than the warranty given under Condition 6 above.