Standard Terms and Conditions
In these Conditions:
‘BUYER’ means the person firm or company to whom any quotation is addressed or with whom the Contract is made
‘GOODS means the goods and services specified in the order.
‘SELLER’ means Smiths Aerospace Ltd registered in England and Wales under number 830345
‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Buyer and Seller
2. BASIS OF THE SALE
2.1. Seller shall sell and Buyer shall purchase the Goods / services in accordance with any written quotation of Seller which is accepted by Buyer, or any written order of Buyer which is accepted by Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2. All terms and conditions and exceptions referred to by the Buyer or contained in the Buyer’s order or in any other document or communication from the Buyer which amend or vary these Conditions are excluded.
2.3. No variation to these Conditions shall be binding unless agreed in writing.
2.4. Any advice or recommendation given by Seller or its employees or agents to Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by Seller is followed or acted upon entirely at Buyer’s own risk, and accordingly Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical or other error in any quotation, acceptance of offer, invoice or other document or information issued by Seller shall be subject to correction without any liability on the part of Seller.
2.6. Any quotation is valid for a period of 30 days only from its date provided the Seller has not previously withdrawn it.
3. ORDERS AND SPECIFICATIONS
3.1. No order submitted by Buyer shall be deemed to be accepted by Seller unless and until the earlier of confirmation in writing or fulfilment of the order by Seller
3.2. Buyer shall be responsible to Seller for ensuring the accuracy of the terms of any order submitted by Buyer, and for giving Seller any necessary information relating to the Goods within a sufficient time to enable Seller to perform the Contract in accordance with its terms.
3.3. The quantity, quality and description of and any specification for the Goods / services shall be those set out in Seller’s quotation (if accepted by Buyer) or Buyer’s order (if accepted by Seller).
3.4. Seller reserves the right to make any changes in the specification of the Goods /services which are required to conform to any applicable Civil Aviation Authority, Joint Aviation Authority, statutory or EC requirements or, where the Goods are to be supplied to Seller’s specification, which do not materially affect their quality or performance.
3.5. It is the Buyer’s responsibility to ensure that the Goods /services are suitable for the use the Buyer intends to make of them, having regard to the environment in which they will operate and the assemblies of which they will form and the Seller shall not be liable for any failure of the Goods/services to operate in such use/environment unless the intended use has been notified by the Buyer to the Seller and the Seller has given written approval.
No order which has been accepted by Seller may be cancelled or reduced by Buyer except with Seller’s written agreement. Buyer shall indemnify Seller in full against all loss, costs and expenses incurred by Seller as a result of any cancellation or reduction.
5. PRICE OF THE GOODS
5.1. The price of the Goods shall be Seller’s quoted price
5.2. Seller reserves the right, by giving notice to Buyer at any time before delivery, to increase the price of the Goods/services to:
5.2.1. reflect any increase in the cost to Seller which is due to any factor beyond the reasonable control of Seller (for example, foreign exchange fluctuation, increases in the costs of labour, materials or manufacture)
5.2.1a. Cost of any modification, or by any variation in specification or design required by buyer, or caused by or due to, rectification of errors in drawings, specifications or schedules provided by buyer, or faulty material, or unsuitable, worn or incomplete tooling supplied by buyer, to be additional and any other variation required by the Buyer to be additional.
5.2.2. reflect any change in delivery dates, quantities or specifications for the Goods requested by Buyer; or
5.2.3. delays caused by Buyer’s instructions or Buyer’s failure to give Seller adequate information or instructions.
5.3. Except otherwise agreed in writing between Buyer and Seller, all prices are given by Seller on an ex works basis, and where Seller agrees to deliver the Goods otherwise than at Seller’s premises, Buyer shall be liable to pay Seller’s charges for transport, packaging and insurance. The price is exclusive of any applicable Customs and Excise duties, all of which shall be paid by Buyer.
6. TERMS OF PAYMENT
6.1. Subject to any special terms agreed in writing between Buyer and Seller, Seller shall be entitled to invoice Buyer for the price of the Goods
6.2. Buyer shall pay the price of the Goods net 30 days from date of Seller’s invoice (‘the due date’), and Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3. If Buyer fails to make any payment on the due date then, without prejudice to any other right
or remedy available to Seller, Seller shall be entitled to cancel the Contract or suspend any further
deliveries to Buyer and/or charge interest on the amount unpaid, at the rate set for late payment by
the Late Payment of Commercial Debts (interest) Act 1998 where the buyer is acting in the course of
a business and in other cases at the rate of 5% per annum above the current Lloyds Bank plc base
6.4. All payments shall be made in pounds sterling or currency as agreed into such bank account as the Seller
shall nominate from time to time. The Seller should receive the full sum without deduction for bank charges, wire
transfer fees or similar charges. No payment shall be deemed to have been received until the Seller has received
cleared funds. The Buyer shall make all payments due under this Contract without any deduction whether by way of
set-off, counterclaim or otherwise unless the Buyer has a valid court order requiring an amount equal to such
deduction to be paid by the Seller to the Buyer. The Seller may appropriate any payment made by the Buyer to the
Seller to such of the Goods as the Seller things fit despite any purported appropriation by the Buyer.
7.1. Delivery of the Goods shall be made by Buyer collecting the Goods at Seller’s premises at any time after Seller has notified Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by Seller, by Seller delivering the Goods to that place.
7.2. Any dates quoted for delivery of the Goods are approximate only and Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract.
7.3. If Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond Seller’s reasonable control or Buyer’s fault, and Seller is liable to Buyer under these Conditions, Seller’s liability shall be limited to the Contract price for the delayed Goods.
7.4. If Buyer fails to take delivery of the Goods or fails to give Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond Buyer’s reasonable control or by reason of Seller’s fault) then, without prejudice to any other right or remedy available to Seller, Seller may store the Goods until actual delivery and charge Buyer for the reasonable costs (including insurance) of storage or sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, restocking and selling expenses) account to Buyer for the excess over the price under the Contract or charge Buyer for any shortfall below the price under the Contract.
7.5. Goods for delivery will not be insured unless specified by Seller.
7.6. Forthwith after delivery of the Goods the Buyer will examine and inspect the Goods.
8.1. Risk of damage to or loss of the Goods shall pass to Buyer as follows:
8.1.1. Point of despatch from Seller’s premises
8.2. Title and property in the Goods shall not pass to Buyer until Seller has full payment of the price of the Goods
8.3. Buyer shall not be entitled to in any way charge by way of security any of the Goods which remain the property of Seller, but if Buyer does so all moneys owing by Buyer to Seller shall (without prejudice to any other right or remedy of Seller) forthwith become due and payable.
9. WARRANTIES AND LIABILITY
9.1. Subject to the other provisions of these Conditions, Seller warrants as follows:
9.1.1. In the case of Goods overhauled and supplied by the Seller, the Seller warrants that (subject to the other Conditions) upon delivery such Goods will, and for a period of 12 months from the date of release, be free from defects in materials or workmanship.
9.2. The above warranty shall not apply in the following cases:
9.2.1. in respect of any defect in the Goods arising from any drawing, design or specification supplied by Buyer;
9.2.2. in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Seller’s or other applicable specifications and instructions as to storage, shelf-life, installation, commissioning use or maintenance, misuse or alteration or repair of the Goods without Seller’s written approval;
9.2.2.a. Warranty shall not apply to any component or assembly which has been subjected to misuse or neglect, damaged by accident, rendered defective by reasons of improper installation or by the performance or repairs or modifications at a place other than Smiths Aerospace Limited facility, unless such work has been carried out with the complete agreement of Smiths Aerospace Limited.
Smiths Aerospace Limited shall have the sole discretion in deciding whether a warranty claim is valid in accordance with the above.
9.2.2.b Smiths Aerospace Limited warrants that all components or assemblies repaired or overhauled by them and delivered to the customer, shall be free from defects in material and workmanship and shall conform to the standard laid down in the manufacturers overhaul manuals, repair specifications and applicable statutory regulations in force at the time of delivery.
9.2.3. if the total price for the Goods has not been paid by the due date for payment;
9.3. Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4. Any claim by Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by Buyer) be notified to Seller within 14 days and if the defect is as a result of damage in transit to the Seller and the carrier within 3 days, of:
9.4.1. the date of delivery (where the defect would be apparent to the Buyer upon a reasonable inspection); or
9.4.2. the date when the Buyer knew or ought reasonably to have known of the defect (where the defect would not be apparent to the Buyer upon a reasonable inspection). If delivery is not refused, and Buyer does not notify Seller accordingly, Buyer shall not be entitled to reject the Goods and Seller shall have no liability for such defect or failure, and Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.5. Except in respect of death or personal injury caused by Seller’s negligence (which if proved is not excluded), Seller’s obligation to repair, replace or refund shall constitute the full extent of Seller’s liability in respect of any loss or damage sustained by Buyer whether caused by breach of Contract or by misrepresentation or by negligence of Seller, its employees or agents or arising from any other cause whatsoever and Seller shall not be liable to Buyer for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever
9.7. If the Seller so requests, the Buyer shall, at the Buyers expense, return the Goods or the part of such Goods which is defective to the Seller.
10. FORCE MAJEURE Seller shall not be liable for delay in or failure to perform any of Seller’s obligations under these Conditions if the delay or failure was due to any cause beyond Seller’s reasonable control (including without limitation Act of God, explosion, flood, tempest, fire or accident, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental or parliamentary authority including the CAA, JAA, import or export regulations, industrial action, difficulties in obtaining raw materials, goods, labour, fuel, parts or machinery or power failure or breakdown in machinery)
11. INTELLECTUAL PROPERTY
11.1.Seller will indemnify Buyer against all loss, damages, costs and expenses awarded against or incurred by Buyer in connection with any claim that the Goods infringe or that their use or resale infringes the patent, copyright, trade mark or other intellectual property rights of any other person. This indemnity shall not apply to any infringement which is due to Seller following or using any drawing, design or specification supplied by Buyer or to the use of such Goods in a manner or for a purpose or in a foreign country not specified or disclosed to Seller prior to Seller making a quotation or to the use of such Goods in association or combination with any other article material or service not supplied by Seller.
11.2.The indemnity contained in Clause 11.1 above is conditional on Buyer giving Seller the earliest possible notice in writing of any claim being made or action threatened or brought against Buyer, Seller being given control of proceedings or negotiations in connection with any claim and except pursuant to a final award, Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of Seller (which shall not be unreasonably withheld).
12. INSOLVENCY OF BUYER AND TERMINATION
12.1.Clause 12.3 applies if: 12.1.1.Buyer makes any voluntary arrangement with its creditors, becomes bankrupt, subject to an administration order, goes into liquidation, or ceases or threatens to cease, to carry on business;
12.1.2.an administrative receiver or manager is appointed of any property or assets of Buyer; 12.1.3.Seller reasonably apprehends that any of the events mentioned above are about to occur in relation to Buyer and notifies Buyer accordingly.
12.1.4.the Buyer suffers or allows any execution whether legal or equitable to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations or duties under the Contract or any other contract between the Seller and the Buyer
12.2. If this clause applies then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.3. The termination of the Contract howsoever arising shall be without prejudice to the rights and duties of either the Buyer or the Seller accrued prior to termination.
13. EXPORT TERMS
13.1.In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.
13.2.Where the Goods are supplied for export from the UK, the provisions of this clause 13 shall (subject to any special terms agreed in writing between Buyer and Seller) apply notwithstanding any other provision of these Conditions.
13.3. Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them and for notifying the Seller in writing or any importation requirements.
13.4. Unless otherwise agreed in writing between Buyer and Seller, the Goods shall be delivered ex works and the cost thereafter will be charged to the account of Buyer. Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 13.5.Unless otherwise agreed in writing between Buyer and Seller, the Seller shall test and inspect the Goods before shipment. Seller shall have no liability for any claim in respect of any damage to the Goods during transit.
15.1. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
15.2. These Conditions do not affect the statutory rights of the consumer.
15.3. The Contract shall be governed by English law and Buyer agrees to submit to the exclusive jurisdiction of the English courts.
15.4 No waiver by Seller of any breach of the Contract by Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.