Terms & Conditions
Terms and Conditions
Please take the time to review Sitsmarts Terms and Conditions
1.1 "Buyer" means the firm, company or person who buys or agrees to buy the Goods from the Seller;
1.2 "Conditions" means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3 "Contract" means any contract between the Seller and the Buyer for the sale and purchase of Goods incorporating these Conditions;
1.4 "Delivery Date" means the date estimated by the Seller for when Goods are to be delivered, which shall in any event be within a reasonable time following the date of the Purchase Order;
1.5 "Goods" means the articles that the Buyer agrees to buy from the Seller (including any part or parts of them);
1.6 "List Price" means the list of Prices for the Goods maintained by the Seller, as amended from time to time;
1.7 "Price" means the price of the Goods excluding VAT (if applicable) or any analogous sales tax, carriage, freight, postage, small order surcharge or insurance costs, all of which the Seller shall pay in addition unless otherwise agreed in writing by the Seller;
1.8 "Purchase Order" means an order for Goods by the Buyer given in accordance with Condition 2.2;
1.9 "Seller" means TEK Seating Limited of E1 Decimus Park, Kingstandingway, Tunbridge Wells, Kent TN2 3GP;
1.10 "VAT" means the sales tax as constituted by the Value Added Tax Act 1994 in England and Wales and/or any equivalent sales tax imposed in any other jurisdiction;
1.11 It is expressly understood that neither the Buyer nor the Seller are consumers, as defined by the Unfair Contract Terms Act 1977;
1.12 Any reference to a statutory provision shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time;
1.13 For the purposes of Conditions 2.3, 2.4, 3.3, 5.5, 5.6 and 7.2 the terms “delivery” or “deliver” shall be construed as applying equally when the Buyer makes its own arrangements to collect the Goods.
2.1 These Conditions shall apply to all Contracts for the sale of Goods by the Seller to the Buyer in any jurisdiction to the exclusion of all other terms and conditions including any terms and conditions that the Buyer may purport to apply under any Purchase Order or any other purchase order, confirmation of order or similar document;
2.2 Each Purchase Order shall be deemed to be an offer to buy the Goods according to the Price, subject to these Conditions;
2.3 No order for Goods placed by the Buyer shall be deemed accepted by the Seller until the Seller delivers the Goods to the Buyer;
2.4 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions;
2.5 Any variation to these Conditions (including any special Conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller;
2.6 Any quotation is given by the Seller on the basis that no Contract shall exist until acceptance of an order for Goods is made in accordance with Condition 2.4, and any such quotation is valid for 42 days only from its date, or until any earlier withdrawal in writing by the Seller.
3 PRICE and PAYMENT
3.1 The Price shall be that in the Seller's List Price or such other Price as the parties may agree in writing;
3.2 Payment of the Price plus VAT and any other applicable costs (including for delivery) shall be due within 30 days of the date of receipt of the invoice supplied by the Seller, unless otherwise specified by the Seller;
3.3 The Seller reserves the right to suspend delivery of any order of Goods (or any part thereof) to any Buyer who is in default of the Seller's payment terms;
3.4 Interest on overdue invoices shall accrue from the date when payment for the Goods becomes due until the date of actual payment at a rate of 3.00% per annum above the base rate of Barclays Bank PLC from time to time in force.
4 THE GOODS
4.1 Unless otherwise agreed with the Buyer the description of the Goods shall be as set out in the Purchase Order or in the Seller's quotation (as the case may be);
4.2 All photographs, specifications, drawings or other descriptions of the Goods issued by Seller in any catalogue, brochure, website or any other form are for illustrative purposes only, may not exactly match the product itself and shall not form part of this Contract;
4.3 Offers of Goods ex-stock are subject to the Goods being unsold at the time of acceptance;
4.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, then the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred (directly or indirectly) by the Seller in connection with any infringement of any patent, copyright, design, trademark or other industrial or intellectual property right of any other person which results from the Seller's use of the Buyer's specification;
4.5 The Seller reserves the right to make any changes to the specification of the Goods which are required to confirm with any applicable statutory or regulatory requirement and which do not materially affect their quality or performance;
4.6 If any Purchase Order is cancelled, the Seller reserves the right to make a charge for work already carried out. The return of Goods is accepted at the discretion of the Seller, subject to the Buyer meeting all reasonable costs in relation to re-stocking, inspection, re-packaging, re-modification or re-finishing.
5 DELIVERY OF THE GOODS
5.1 Unless otherwise agreed, delivery of the Goods shall take place at the address specified in the Purchase Order on the Delivery Date and the Buyer shall be deemed to have accepted the Goods upon their delivery or collection, unless the Buyer signs the delivery book of the Seller or any carrier as "non-examined". The Buyer shall at its own cost make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery;
5.2 Where an independent carrier is used for delivery, all Goods are carried subject to the terms and conditions of that carrier. It will be the Buyer's responsibility to request, read and understand those conditions;
5.3 The Delivery Date specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the Contract;
5.4 If the Seller is unable to deliver the Goods at the request of or due to the default of the Buyer, then the Seller shall be entitled to place the Goods in storage until such times as delivery may be effected and the Buyer shall be liable for any expense associated with such storage;
5.5 Any damage or defect in the Goods present on delivery must be notified to the Seller in writing within 10 days of delivery or, where a carrier is used, notified to the Seller and the carrier in accordance with the carrier's terms and conditions;
5.6 Risk shall pass on delivery of the Goods to the Buyer.
6.1 The Seller warrants that it has good title to the Goods;
6.2 Title to the Goods shall not pass to the Buyer until the Seller has been paid in full in cash or in cleared funds for the Goods and been paid all other sums which are or which become due to the Seller from the Buyer on any account;
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Seller's bailee;
(b) store the Goods (at no cost to the Seller) separately from all other goods of any third party in such a way as they remain identifiable as the Seller's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction and, on request from the Seller, produce the policy of insurance to the Seller;
6.4 The Buyer's right to possession of the Goods shall terminate automatically and immediately if the Buyer ceases to trade, becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party or shall enter into liquidation whether voluntarily or compulsorily (other than for the purposes of a reconstruction or amalgamation) or shall make any arrangement or composition with its creditors or shall suffer the making of an administration order in respect of all or any part of its assets or suffers any similar action in consequence of a debt. In the case of any such event, the Buyer acknowledges that the Seller shall have the right to recover the Goods or any proceeds from the sale of the Goods forthwith and pending such recovery, but notwithstanding that the terms of Condition 6.2 shall continue to apply, any proceeds from the sale of the Goods (whether received before or after the relevant event) shall be placed in a separate account which is identified as for the exclusive benefit of the Seller;
6.5 Until such time as title to the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time upon giving prior reasonable notice to the Buyer to examine the Goods, and in addition if it deems necessary to require the Buyer to deliver up the Goods and, if the Buyer fails to do so forthwith, to enter upon the premises of the Buyer or any third party where the Goods are stored and repossess the Goods;
6.6 In addition to any right of lien to which the Seller may by virtue of these Conditions or by any law be entitled, the Seller shall (in the event of the Buyers insolvency) be entitled to a general lien on any goods of the Buyer in its possession (although such goods or some of them may have been paid for) for the unpaid price of the Goods or any other goods sold and delivered by the Seller to the Buyer under the same or any other contract;
6.7 Nothing in this Condition 6 shall;
(a) entitle the Buyer to return the Goods unless requested to do so by the Seller under this Condition 6:
(b) constitute or be deemed to constitute the Buyer the agent of the Seller otherwise than expressly provided for this Condition 6: or
(c) authorise the Buyer to make or give any representation or warranty to any third party relation to the Goods binding on the Seller unless the Seller has authorised the Buyer to do so in writing;
6.8 Any termination of the Contract whether by act of the parties thereto or by operation of law shall not prejudice, limit or extinguish, the rights of the Seller under this Condition 6.
7 LIMITATION of LIABILITY
7.1 No warranty or representation is given that the Goods are suitable for any particular purpose and all warranties, conditions and other terms implied by statute or common law are to the fullest extent permitted by law excluded from the Contract, save that nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for breach of the warranty contained in Condition 6.1 or for breach of warranty as to title implied by the Sale of Goods Act 1979 so far as such Act applies to the Contract;
7.2 The Seller undertakes at its option to:
(a) Make good any shortage or non-delivery;
(b) Replace or repair damaged or defective Goods; or
(c) Refund to the Buyer the amount paid for damaged or defective Goods
Provided that any replacement, repair or refund of Goods shall either be made (i) following notice under Condition 5.5 or (ii) within the period of 12 months from the date of delivery of Goods to the Buyer where the damage or defect is as a result of defective workmanship or materials (fair wear and tear accepted);
7.3 Notwithstanding Condition 7.2, the Seller's total liability for direct loss or damage in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising under or in connection with this Contract shall not in any circumstances exceed £10,000.
7.4 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller's negligence or that of its employees or agents;
7.5 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller or any party, whether in writing or at any time prior to the date of the Contract which is not set out in this Contract;
7.6 Save as precluded by law, the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, loss of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract;
7.7 The Seller makes no representation and accepts no liability in respect of the import or export of the Goods.
8 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, flood, fire, explosion, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the party shall be entitled to a reasonable extension of its obligations.
9.1 Unless otherwise expressly stated in these Conditions, all notices from the Buyer to the Seller must be in writing and sent to the Seller at the address in Condition 1.9;
9.2 The parties do not intend that any terms of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it;
9.3 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid illegal or unenforceable provision eliminated;
9.4 Failure or delay by the Seller 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 the Seller 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.
10 GOVERNING LAW and JURISDICTION
These Conditions shall be governed by and construed in accordance with the Law of England and Wales and the parties hereby submit to the exclusive jurisdiction of the Courts of England and Wales.