The definitions and rules of interpretation in this condition apply in these conditions:
Buyer: the person, firm or company who purchases the Goods from Smiffy's.
Smiffy's: RH Smith & Son (Wigmakers) Ltd, trading as Smiffy’s, registered in England, registered office: Peckett Plaza, Gainsborough Business Park, Gainsborough, Lincolnshire DN21 1FJ (company no. 01179968). Smiffy's VAT registration number is GB 129 5795 28. Smiffy's is a member of the Giftware Association.
Contract: the contract, incorporating these terms, between Smiffy's and the Buyer for the sale and purchase of the Goods set out in the relevant Order accepted by Smiffy’s in accordance with these terms
Forward Order: has the meaning set out in clause 5.3.
Goods the goods (including any part or parts of them) ordered by the Buyer and agreed to be supplied by Smiffy's pursuant to the relevant Order accepted by Smiffy’s in accordance with these terms.
Order: an order placed by the Buyer in accordance with these terms.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it
Words in the singular include the plural and in the plural include the singular.
A reference to one gender includes a reference to the other gender.
Condition headings do not affect the interpretation of these conditions.
Subject to any variation under clause 2.2, the Contract shall be on these terms to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of Order, specification or other document). No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of Order, specification or other document shall form part of the Contract.
These terms apply to all Smiffy's sales and any variation to these terms and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the Sales Director or Commercial Director of Smiffy's. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Smiffy's which is not set out in the Contract. Nothing in this clause shall exclude or limit Smiffy's liability for fraudulent misrepresentation.
Goods may be ordered by the Buyer submitting an Order by any of the following means: in writing, by fax, by telephone, by email or through the Website. By prior arrangement, Smiffy’s may, in its discretion, permit the Buyer to place Orders using Smiffy’s electronic ordering facility, subject to the terms and conditions of a separate agreement to be entered into between Smiffy’s and the Buyer. In all cases, the Buyer shall ensure that the details of its Order and any applicable specification are complete and accurate.
Each Order placed by the Buyer by whatever means (including the Buyer accepting any quotation for Goods from Smiffy's) shall be deemed to be an offer by the Buyer to buy Goods subject to these terms. Smiffy’s issuing of any quotation (in whatever form) does not, of itself, constitute a Contract.
No Order placed by the Buyer shall be deemed to be accepted by Smiffy's until an Order confirmation is issued by Smiffy's or (if earlier) Smiffy's delivers the Goods. Each Order accepted by Smiffy’s shall constitute a separate Contract.
No Order accepted by Smiffy’s may be cancelled by the Buyer without the express prior written consent of Smiffy’s, except that a Forward Order may be cancelled by the Buyer by notice in writing, provided such notice is received by Smiffy’s prior to despatch of the Goods. If a Forward Order is cancelled by the Buyer, Smiffy’s shall be entitled to invoice the Buyer for 50% of the price for the Goods.
Where the Buyer orders Goods for re-sale, onward supply or distribution (rather than for its own use), the Buyer agrees that it shall not make, seek to be made or procure to be made any Active Sales (as defined below) of any of the Goods into any territory or to any trade customer in a trade channel in respect of which Smiffy’s has either exclusively reserved to itself the right to supply Goods or has appointed an exclusive distributor of the Goods, as indicated in the Schedule of Trade Exclusivity which may be found (updated from time to time) on the Website. Nothing, however, shall prevent the Buyer from making Passive Sales of the Goods. For these purposes, “Active Sales” means: (a) actively approaching specific actual or potential customers in any of the exclusive territories and/or trade channels referred to above by, for instance, direct mail or visits; (b) actively approaching actual or potential customers in any such territory and/or trade channel through advertisement in media or other promotions specifically targeted at customers in such territory and/or trade channel; or (c) establishing a warehouse or distribution outlet in any such territory. “Passive Sales” means responding to unsolicited requests (provided such requests do not result from any Active Sales activity of the Buyer) from actual or potential customers within any of the exclusive territories and/or trade channels referred to above, including the delivery of goods or services to such customers.
All samples, drawings, descriptive matter, specifications and advertising issued by Smiffy's and any descriptions or illustrations (whether contained in any Smiffy's catalogue or brochure, on the Website or otherwise) are for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and there is no sale by sample
Unless otherwise agreed in writing by Smiffy's, delivery of the Goods shall take place as follows:
if the Goods are being despatched from Smiffy's place of business in the United Kingdom and are being delivered to the Buyer by Smiffy's appointed carrier, delivery of the Goods shall take place on their arrival at the Buyer's designated place of delivery; and
if the Goods are being despatched from a foreign territory, delivery of the Goods shall take place at the time of lading in that territory.
Buyer-requested delivery dates are not guaranteed by Smiffy’s and any dates specified by Smiffy's for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates for delivery are specified, delivery shall be within a reasonable time.
The Buyer may, when placing an Order, request a forward delivery date, which means a date more than 30 days in the future from the date of Order placement (“Forward Order”) but, in accordance with clause 5.2, the delivery date is not guaranteed.
Subject to the other provisions of these terms Smiffy's shall not be liable for any delay in the delivery of the Goods, nor shall any delay entitle the Buyer to terminate the Contract unless such delay exceeds 90 days
If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Smiffy's is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
risk in the Goods shall pass to the Buyer (including for loss or damage caused by Smiffy's negligence),
the Goods shall be deemed to have been delivered; and
Smiffy's may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Where the Buyer wishes to collect the Goods, the Buyer shall, at its expense, provide adequate and appropriate equipment and manual labour for loading the Goods at the collection point.
If Smiffy's delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by Smiffy's, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
Smiffy's may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
Orders for delivery outside the United Kingdom may be opened and inspected by customs authorities and may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. The Buyer will be responsible for payment of any such import duties and taxes. Smiffy’s has no control over these charges and cannot predict their amount. Furthermore, the Buyer must comply with all applicable laws and regulatory requirements of the country for which the Goods are destined. Smiffy’s will not be liable for any breach by the Buyer of such laws or regulatory requirements.
The quantity of any consignment of Goods as recorded by Smiffy's on despatch from Smiffy's place of business (or such other place of despatch as agreed by Smiffy's) shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
Smiffy's shall not be liable for any non-delivery of Goods (even if caused by Smiffy's negligence) unless the Buyer gives written notice to Smiffy's of the non-delivery within seven days of the date when the Goods would, in the ordinary course of events, have been received.
Any liability of Smiffy's for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
Smiffy's does not operate a sale or return policy.
The Goods are at the risk of the Buyer from the time of delivery.
Ownership of the Goods shall not pass to the Buyer until Smiffy's has received in full (in cash or cleared funds) all sums due to it in respect of:
the Goods; and
all other sums which are or which become due to Smiffy's from the Buyer on any account.
Except to the extent the Buyer resells the Goods in accordance with clause 7.5, until ownership of the Goods has passed to the Buyer, the Buyer shall:
hold the Goods on a fiduciary basis as Smiffy's bailee;
store the Goods (at no cost to Smiffy's) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Smiffy's property;
not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured on Smiffy's behalf for their full price against all risks to the reasonable satisfaction of Smiffy's. On request the Buyer shall produce the policy of insurance to Smiffy's; and
remain liable to Smiffy's for the Goods; and
grant Smiffy's, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them. In the case of liquidation or receivership of the Buyer, where Smiffy's is still owed monies, agents of Smiffy’s shall be entitled to enter upon any premises where goods which remain unpaid for are stored or where they are reasonably thought to be stored, and repossess them without any restriction from any appointed receiver or liquidator of the assets of the Buyer. Smiffy's shall be entitled to charge a handling and administration fee in respect of the recovery of Goods pursuant to this clause of no more than 25% of the original invoice price due for such Goods
The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
any sale shall be effected in the ordinary course of the Buyer's business at full market value;
any such sale shall be a sale of Smiffy's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale without creating any relationship, disclosed or undisclosed, between Smiffy's and any customer of the Buyer; and
the proceeds of any such sale shall be paid into a bank account in the name of and under the control of the Buyer which is separate from all other bank accounts and other monies and assets of the Buyer and any third parties and which is not overdrawn.
The Buyer's right to possession of the Goods and the Buyer's right to resell the Goods before ownership has passed to it shall terminate immediately if:
the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its properly or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Smiffy's and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade;
the Buyer encumbers or in any way charges any of the Goods; or
the Buyer defaults on payment to Smiffy's for any Goods.
Smiffy's shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Smiffy's.
On termination of the Contract, howsoever caused, Smiffy's (but not the Buyer's) rights contained in this clause 7 shall remain in effect.
Unless otherwise agreed by Smiffy's in writing, the price for the Goods shall be the price set out in Smiffy's price list (contained in Smiffy's catalogue or brochure or, for orders placed through the Website, as set out on the Website) current as of the date of acceptance by Smiffy’s of the relevant Order.
The price for the Goods shall be exclusive of any VAT and all costs or charges in relation to packaging, delivery, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
The Website contains a large number of Goods and, despite Smiffy's best efforts, some of the Goods listed on the Website may not be priced correctly. Smiffy's will normally check prices as part of Smiffy's despatch processes so that, where the correct price of Goods is less than Smiffy's stated price, Smiffy's will charge the lower amount. However, if the correct price of Goods is higher than the price stated on the Website, Smiffy's will usually, at Smiffy's discretion, either reject the Order and inform the Buyer of such rejection, or contact the Buyer for instructions before despatching the Goods
All Goods must be paid for when the order is placed unless the Buyer has credit terms with Smiffy's, in which case clause 9.2 shall apply.
Where the Buyer buys more than £3,000 of Goods per annum, Smiffy's may, in its absolute discretion, and subject to credit assessment, grant credit terms to the Buyer, up to a credit limit determined by Smiffy’s, from time to time. If such credit terms are granted by Smiffy's to the Buyer, all Orders must be paid for, in full, within 30 days of the date of the relevant invoice from Smiffy’s, which will be issued when the relevant Order is despatched (unless longer credit terms have been expressly agreed by Smiffy’s), except that:
for bespoke Orders (i.e. Orders for Goods which are not available from stock and are not listed by Smiffy’s but which, by special arrangement, Smiffy’s agrees to supply following a specific request from the Buyer), 50% of the total value of the bespoke Order must be paid on the date of issue, by Smiffy’s, of the relevant Order confirmation and the balance of 50% on the date of issue, by Smiffy’s, of the relevant invoice; and
For Orders placed by the Buyer between 1 July and 30 September (inclusive) (“Halloween Orders”), the Buyer will be allowed extended credit allowing payment to be made, in full, by no later than 1 November in the same year, provided always that the Buyer is within its credit limit. (Halloween Orders will not be despatched if the Buyer is not within its credit limit.)
Time for payment shall be of the essence. An interest charge of 5% per annum above the then-current base lending rate of the Bank of England may, at Smiffy's discretion, be charged on all invoices overdue for payment, calculated on a daily basis, until judgment or sooner payment.
No payment shall be deemed to have been received until Smiffy's has received cleared funds.
The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Smiffy's to the Buyer.
Where Smiffy’s accepts payment by credit or debit card (including for Orders placed through the Website), for security reasons, the statement address for the credit or debit card used to pay has to be the same as the delivery address for the Order. Card transactions are subject to validation checks by the card issuer and Smiffy's is not liable if the card issuer declines to authorise payment for any reason. It is possible that the card issuer may charge an online handling fee or processing fee for which Smiffy's is not liable
All payments payable to Smiffy's under the Contract shall become due immediately on its termination despite any other provision.
Where Smiffy's is not the manufacturer of the Goods, Smiffy's shall endeavour to transfer to the Buyer the benefit of any warranty, guarantee or similar statement given to Smiffy's.
Smiffy's warrants that (subject to the other provisions of these conditions) on delivery and, unless otherwise notified to the Buyer by Smiffy's in writing or by such other means including but not limited to product packaging, for a period of 12 months from the date of delivery, the Goods shall be:
of satisfactory quality within the meaning of the Sale of Goods Act 1979;
reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to Smiffy's in writing and Smiffy's has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of Smiffy's.
Smiffy's shall not be liable for a breach of any of the warranties in clause 10.2 unless:
the Buyer gives written notice of the defect to Smiffy's by completing Smiffy's authorisation form which is available from Smiffy's Credit and Returns Department (the "Authorisation Form") and the Authorisation Form is approved by Smiffy's; or
the defect is as a result of damage in transit from Smiffy’s or Smiffy's has despatched the incorrect Goods, the Buyer gives written notice of the defect to Smiffy's by completing and returning the Authorisation Form within seven days of receipt of the Goods and the Authorisation Form is approved by Smiffy's; and
Smiffy's is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Smiffy's) returns such Goods to Smiffy's place of business at Smiffy's cost for the examination to take place there.
Smiffy's shall not be liable for a breach of any of the warranties in condition 10.2 if:
the Buyer makes any further use of such Goods after giving such notice; or
the defect arises because the Buyer failed to follow Smiffy's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
the Buyer alters or repairs such Goods without the written consent of Smiffy's.
Subject to condition 10.3 and condition 10.4, if any of the Goods do not conform with any of the warranties in condition 10.2 Smiffy's shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Smiffy's so requests, the Buyer shall, at Smiffy's expense, return the Goods or the part of such Goods which is defective to Smiffy's.
If Smiffy's complies with condition 10.5 it shall have no further liability for a breach of any of the warranties in clause 10.2 in respect of such Goods.
Any Goods replaced shall belong to Smiffy's and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period or such other period as has been notified to the Buyer in accordance with condition 10.2 of these terms.
Except as expressly set out in these terms and subject only to clause 11.2, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to any Goods or to anything supplied or provided by Smiffy’s under any Contract.
Nothing in these conditions excludes or limits the liability of Smiffy's:
for death or personal injury caused by its negligence;
for fraudulent misrepresentation or for any other fraudulent act or omission; or
under section 2(3), Consumer Protection Act 1987;
for breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
for any other liability which may not lawfully be excluded or limited;
Subject to clause 11.2, Smiffy’s shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any:
loss of profit;
loss of sales, turnover, revenue or business;
loss of customers, contracts or opportunity;
loss of or damage to reputation or goodwill
loss of anticipated savings;
loss of any software or data;
loss of use of hardware, software or data;
loss or waste of management or other staff time; or
indirect, consequential or special loss; arising out of or relating to any Contract, whether or not such loss was foreseeable or if Smiffy’s was advised of its possibility (and, for the purposes of this clause 11.3, the term "loss" includes a partial loss or reduction in value as well as a complete or total loss).
Subject to clauses 11.2 and 11.3, Smiffy’s maximum liability arising out of or relating to each Contract or its subject matter (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited to the Contract price.
Smiffy's may assign the Contract or any part of it to any person, firm or company.
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Smiffy's.
Smiffy's reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Smiffy's including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to Smiffy's to terminate the Contract.
Each right or remedy of Smiffy's under the Contract is without prejudice to any other right or remedy of Smiffy's whether under the Contract or not.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity. voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
Failure or delay by Smiffy's in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
Any waiver by Smiffy's of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
Contracts may be concluded in English only and there are no public filing requirements.
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
Smiffy's reserves the right to amend these terms from time to time by amending them on the Website, although no such change will affect any Order already accepted by Smiffy's. These terms were last updated on 15 March 2012.
All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post, recorded delivery, fax or email.
(in case of communications to Smiffy's) to its registered office or such changed address as shall be notified to the Buyer by Smiffy's; or
(in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to Smiffy's by the Buyer.
Communications shall be deemed to have been received:
if sent by pre-paid first class post or by recorded delivery, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
if delivered by hand, on the day of delivery; or
if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day; or
if sent by email (in the case of a communication to Smiffy's to: firstname.lastname@example.org) on a working day prior to 5.30 pm, at the time of transmission and otherwise on the next working day.
|Communications addressed to Smiffy's shall be marked for the attention of the Commercial Director.|