1.         DEFINITIONS AND INTERPRETATION

1.1       In these Conditions, the following words shall have the following meanings:

            “Company”    means Smart-Ex Technology Limited (Company Number 03556493) whose registered office is at 46 Barkston House Croydon Street, Leeds. LS11 9RT UK or any Group Company;

            “Conditions”   means these terms and conditions incorporated into every contract for the sale of Goods or provision of Services made between the Customer and the Company;

            “Customer”    means the person(s), firm, company or partnership with whom the Company enters into a contract and to whom the Company has agreed to sell the Goods or for whom the Company has agreed to provide the Services in accordance with these Conditions;

            “Goods”          means any goods sold by the Company to the Customer;

            “Group Company”    means Smart-Ex Holdings Limited (Company Number 6957550) and any Subsidiary or Holding Company of Smart-Ex Holdings Limited from time to time;

            “Services”       means any of the services provided by the Company for the Customer;

            “Subsidiary” and “Holding Company” the meanings respectively ascribed thereto in Section 1159 of Companies Act 2006;

            “Warranty Period” means the period of one year from the date of delivery of the Goods to the Customer.

1.2       In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.3       In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

1.4       In these Conditions headings will not affect the construction of these Conditions.

2.         APPLICATION

2.1       Subject to any variation under Condition 2.2,  any contract for Goods or agreement for Services between the Company and the Customer will be governed by and incorporate these Conditions which shall apply in place of and prevail over any terms or conditions, (whether or not in conflict or inconsistent with these Conditions), contained or referred to in any documentation submitted by the Customer or in correspondence or elsewhere or implied by trade, custom, practice or course of dealing.

2.2       These Conditions supersede all previous terms and conditions in force between the Company and the Customer. Any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by a Director of the Company. Nothing in this Condition will exclude or limit the Company’s liability for fraudulent misrepresentation.

2.3       Acceptance by the Customer of delivery of any Goods shall (without prejudice to Condition 3 or any other manner in which acceptance of these Conditions may be evidenced) be deemed to constitute unqualified acceptance of these Conditions.

2.4       If, subsequent to any contract of sale of Goods or provision of Services which is subject to these Conditions, a contract of sale of Goods or provision of Services is made with the same Customer without reference to any terms and conditions such contract howsoever made shall be deemed to be subject to these Conditions.

3.         QUOTATIONS AND ACCEPTANCE

3.1       A quotation by the Company does not constitute an offer and the Company reserves the right to withdraw or revise the same at any time prior to the Company's acceptance of the Customer's order.

3.2       The Company's acceptance of the Customer's order (including telephone orders) shall be effective only when confirmed in writing or by email by the Company.

3.3       The Customer may not cancel any order once accepted by the Company without the written consent of the Company and the Customer will in any event be liable to the Company for all expenses or loss (including loss of profit) incurred by the Company in relation to any such cancellation.

4.         PRICES

4.1       The prices and charges payable by the Customer for the Goods or Services shall be those set out in the Company's order acknowledgement. The Company shall have the right at any time to withdraw any discount from its prices and/or to revise prices to take account of inflation and/or increases in costs including (without limitation) costs of any goods materials carriage labour or overheads the increase or imposition of any tax duty or other levy and any variation in exchange rates.

4.2       Unless otherwise specified VAT and any other tax or duties payable by the Customer shall be added to the price.

4.3       Any discount allowed to the Customer shall be notified to the Customer from time to time.

4.4       Unless otherwise stated origination expenses (including the cost of acquiring or adapting machinery to the Customer's requirements) shall be added to the price and may be charged separately prior to delivery of the Goods.

5.         TERMS OF PAYMENT

5.1       The Company shall invoice the Customer for the Goods on completion of the build. Payment of invoices shall unless otherwise agreed in writing be made in full without any deduction or set-off within 30 days of the date of the invoice.  Time of payment shall be of the essence of all contracts between the Customer and the Company to which these Conditions apply.  The Company reserves the right to suspend the provision of Goods and/or Services to the Customer where any amounts are overdue under any contract with the Customer until all such amounts have been paid.

5.2       Any extension of credit allowed to the Customer may be changed or withdrawn at any time.

5.3       Interest shall be payable on overdue accounts at the rate of 3% over National Westminster Bank PLC base rate from time to time to run from the due date for payment until receipt by the Company of the full amount whether before or after judgment.

5.4       If in the opinion of the Company the credit-worthiness of the Customer shall have deteriorated prior to delivery of any Goods the Company may require full or partial payment of the price prior to such delivery or the provision of security for payment by the Customer in a form acceptable to the Company.

6.         SUPPLY OF SERVICES

6.1       The Company shall supply the Services to the Customer subject to these Conditions. Any changes of additions to the Services must be agreed in writing by the Company.

6.2       The Company shall supply the Services using all reasonable skill and care subject to the payment by the Customer of all sums due to the Company on the payment dates specified in these Conditions.

6.3       The Customer shall (at its own expense) supply to the Company all necessary documents, materials and another information relation to the provision of the Services as may be required by the Company in a timely manner in order to permit the Company to supply the Services as agreed. It is the responsibility of the Customer to ensure the accuracy and timely delivery of all such documents, materials and information reasonably requested by the Company.

6.4       The Company shall use its reasonable endeavours to supply the Services in a timely manner but does not guarantee to do so and the Company accepts no liability whatsoever for failure to meet any such timescale or deadline.

6.5       The Company may at its sole discretion and without notifying the Customer make any change to the Services which are necessary to comply with any applicable statutory requirements, or which do not materially affect the quality or nature of the Services.

7.         DELIVERY

7.1       Delivery or despatch dates mentioned in any quotation, order acceptance form or elsewhere are approximate only and not of any contractual effect and the Company shall not be under any liability to the Customer in respect of any failure to deliver on any particular date or dates.  Time for delivery shall not be of the essence of any contract to which these Conditions apply and shall not be made so by the service of any notice.

7.2       Delivery shall be at the Customer's premises unless otherwise stipulated or agreed by the Company.  Unless otherwise stipulated or agreed by the Company the cost of delivery shall be included in the price but the Company shall make an additional charge for delivery in the United Kingdom otherwise than by its normal carrier or for express delivery.  Unless agreed in writing the Customer shall unload and inspect the Goods immediately on their arrival at the Customer's premises. The Customer shall indemnify the Company against any and all claims liabilities costs or expenses arising as a result of the Company or its sub-contractors assisting the Customer in the unloading, loading or other removal of the Goods from the point of delivery.

7.3       If the Customer refuses or fails to take delivery of Goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery and/or shipment of the Goods the Company shall be entitled to terminate the contract with immediate effect, to dispose of the Goods as the Company may determine, and to recover from the Customer any loss and additional costs incurred as a result of such refusal or failure (including without limitation storage costs from the due date of delivery).

7.4       Unless otherwise expressly agreed the Company may effect delivery in one or more instalments.  Where delivery is effected by instalments each instalment shall be treated as a separate contract governed by these Conditions.

7.5       Section 32(2) of the Sale of Goods Act 1979 shall not apply.  The Company shall not be required to give the Customer the notice specified in Section 32(3) of that Act.

8.         RISK

8.1       Risk in the Goods shall immediately pass to the Customer upon delivery of the Goods into the custody, care or control of the Customer or its agents or to the carriers and the Customer thereafter shall be responsible for all claims, actions and losses arising out of or in any way associated with the Goods.

8.2       Any property of the Customer in or under the Company's possession or control and all property supplied to the Company on behalf of the Customer shall be held by the Company at the Customer's risk.

8.3       From the time of delivery until property in the Goods passes to the Customer in accordance with Condition 9 the Customer shall insure the Goods for their full value with a reputable insurance company.  Upon request, the Customer shall use reasonable endeavours to have the Company's interest in the Goods noted on the insurance policy.  Until property in the Goods passes to the Customer the Customer shall hold the proceeds of any claim on such insurance policy on trust for the Company and shall forthwith account to the Company with such proceeds.

9.         TITLE

9.1       Notwithstanding delivery and passing of risk, the Goods shall remain the property of the Company until such time as the Customer shall have paid to the Company the agreed price (together with any accrued interest) and all other amounts owed by the Customer to the Company in respect of any other contract for the sale of Goods or provision of Services.

9.2       Until property in the Goods has passed the Customer shall be in possession of the Goods in a fiduciary capacity and shall:-

(a)        not part with possession of the Goods, nor incorporate the Goods within any other product;

(b)        take proper care of the Goods and take all reasonable steps to prevent any damage to or deterioration of them;

(c)        keep the Goods free from any charge, lien or other encumbrance and store the Goods in such a way to show clearly that they belong to the Company;

(d)       notify the Company forthwith upon the happening of any of the events set out in Condition 17.1; and

(e)        give the Company such information relating to the Goods as the Company may from time to time require.

9.3       The Company reserves the right to repossess and re-sell any Goods to which it has retained title and the Company's consent to the Customer's possession of the Goods and any right the Customer may have to possession of the Goods shall in any event cease:-

(a)        if any sum owed by the Customer to the Company (whether in respect of the Goods or otherwise) is not paid to the Company by the date when it is due; or

(b)        upon the happening of any of the events set out in Condition 17.1; or

(c)        if the Customer commits a breach of any contract with the Company.

9.4       The Customer hereby grants an irrevocable right and licence to the Company and its servants and agents to enter upon all or any of the Customer's premises with or without vehicles during normal business hours for the purpose of inspecting and/or re-possessing Goods to which it has retained title.  This right and licence shall continue to subsist notwithstanding the termination for any reason of any contract which is subject to these Conditions and is without prejudice to any accrued rights of the Company under such contracts or otherwise.

9.5       Notwithstanding the provisions of this Condition 9 the Company shall be entitled to bring an action against the Customer for the price of the Goods in the event of non-payment by the Customer by the due date even though property in the Goods has not passed to the Customer and/or shall have the right by notice to the Customer at any time after delivery to pass property in the Goods to the Customer as from the date of such notice.

10.       THIRD PARTY RIGHTS

10.1     The Customer shall indemnify the Company against any and all claims liabilities costs and expenses incurred by or made against the Company as a direct or indirect result of the carrying out of any Services or any work required to be done on or to the Goods in accordance with the requirements or specifications of the Customer involving any infringement or alleged infringement of any rights of any third party.

10.2     In respect of all other sales, if at any time any allegation of infringement of patent, copyright or design rights is made in respect of the Goods or if in the Company's reasonable opinion such an allegation is likely to be made, the Company may at its option and at its own expense:-

(a)        modify or replace the Goods without detracting from overall performance thereof, so as to avoid the infringement; or

(b)        procure for the Customer the right to continue to use the Goods; or

(c)        re-purchase the Goods at the price paid by the Customer less depreciation at such rate as is applied by the Company to its own equipment.

10.3     The Customer shall notify the Company forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party.  The Company shall have control over and shall conduct any such proceedings in such manner as it shall determine.  The Customer shall provide all such reasonable assistance as the Company may request.  The cost of any such proceedings shall be borne in such proportions as the parties shall determine.

10.4     Where the Company or its employees or agents design the Goods pursuant to a commission from the Customer (whether in consideration of an order or otherwise) then any copyright or design rights created in relation to the Goods shall vest in the Company and the Customer agrees that it shall do any acts and execute any documentation required by the Company to secure vesting of title to such copyright or design rights to the Company.

11.       WARRANTY & LIABILITY

11.1     Subject to the remaining provisions of this Condition 11, the Company warrants that the Goods will be in good working order for the Warranty Period. Where any fault is discovered within the Warranty Period the Customer will return the Goods to the Company’s premises (at the Customer’s cost) for repair (or at the Company’s option, replacement) and the Company will undertake such repairs (or at the Company’s option, replacement) as is necessary to ensure that the Goods are in good working order and then return the Goods to the Customer (at the Company’s cost).

11.2     Notwithstanding the terms of Condition 11.1 above, the Company shall not be liable to the Customer:-

(a)        for non-delivery unless a written claim is received by the Company within 3 days from the date of the Company's invoice or advice note, whichever is the earlier;

(b)        for shortages in quantity delivered unless the Customer notifies the Company of any claim for short delivery within 3 days of receipt of any Goods;

(c)        for damage to or loss of the Goods or any part of them in transit (where the Goods are carried by the Company's own transport or by a carrier on behalf of the Company) unless the Customer shall notify the Company of any such claim within 3 days of receipt of the Goods or the scheduled date of delivery whichever shall be the earlier;

(d)       for defects in the Goods caused by fair wear and tear, abnormal or unsuitable conditions or storage or use or any act, neglect or default of the Customer or of any third party;

(e)        for other defects in the Goods unless notified to the Company within 7 days of receipt of the Goods by the Customer or where the defect would not be apparent on reasonable inspection within 3 months of delivery;

(f)        or its Customer’s customers for any accidents, calamities, explosions, loss of  life, injury or damage to property as a result of the Customer or its employees or agents carrying out any unapproved modifications to the Goods or any unapproved repairs or maintenance to the Goods or as a result of installation of the Goods not being in accordance with the Company’s written instructions.

11.3     Where liability is accepted by the Company under Condition 11.2 the Company's only obligation shall be at its option to make good any shortage or non-delivery and/or as appropriate to replace or repair any Goods found to be damaged or defective and/or to refund the cost of such Goods to the Customer.

11.4     The Company shall not be liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work carried out without the Company's prior written approval and the Customer shall indemnify the Company against any and all claims and costs arising out of such claims to the extent that such repairs or remedial work have been performed by the Customer or its agents.

11.5     The Company's aggregate liability to the Customer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstance exceed the cost of the Services provided or the defective, damaged or undelivered Goods which give rise to such liability (as determined by net price invoiced to the Customer) in respect of any occurrence or series of occurrences.

11.6     Subject to this Condition 11:-

(a)        all conditions warranties and representations expressed or implied by statute common law or otherwise in relation to the Services and the Goods are hereby excluded;

(b)        the Company shall be under no liability to the Customer for any loss damage or injury, direct or indirect, resulting from defects in design, materials or workmanship or otherwise howsoever arising (and whether or not caused by the negligence of the Company its employees or agents);

(c)        the Company shall have no liability for any indirect or consequential losses or expenses suffered by the Customer, howsoever caused, and including without limitation loss of anticipated profits, goodwill, reputation, business receipts or contracts, or losses or expenses resulting from third party claims.

11.7     The Company's prices are determined on the basis of the limits of liability set out in this Condition.  The Customer may by written notice to the Company request the Company to agree a higher limit of liability provided insurance cover can be obtained for such higher limit.  The Company shall effect insurance up to such limit and the Customer shall pay upon demand the amount of any and all premiums.  The Customer shall disclose such information as the insurers shall require.  In no case shall the Customer be entitled to recover from the Company more than the amount received from the insurers.

12.       SPECIFICATIONS AND CONFIDENTIALITY

12.1     Unless expressly agreed in writing by the Company all drawings, designs and specifications submitted by the Company are approximate only and the Company shall have no liability in respect of any deviation from them.

12.2     The Company accepts no responsibility for any errors omissions or other defects in any drawings, designs or specifications not prepared by the Company and the Company shall be indemnified by the Customer against any and all claims liabilities costs and expenses incurred by the Company arising from them.

12.3     Alterations to Goods required by the Customer following inspection and approval of drawings, designs and specifications by the Customer shall be at the Customer's expense and will be charged for separately.

12.4     All drawings, designs, specifications and information submitted by the Company shall be treated as confidential and shall not be disclosed to any third party without the Company's written consent or used by the Customer other than for purposes authorised by the Company.

12.5     The Company reserves the right to make without notice any changes in materials specifications or design of the Goods which having regard to all circumstances it considers to be reasonable or desirable but which do not affect the operational requirements of the Goods and such changes shall not affect the validity of the contract.

13.       PACKAGING

13.1     The Customer shall meet the cost of any special packaging requested by the Customer or any packaging rendered necessary by delivery by any means other than the Company's normal means of delivery.  The Customer shall unless otherwise agreed be solely responsible for the disposal of all packaging in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.

13.2     The Company shall be entitled to invoice the Customer for the cost of all returnable packaging material unless the same are returned to the Company in good condition carriage paid within 30 days of the date of delivery.

14.       LICENCES AND CONSENTS

            If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Customer the Customer shall obtain the same at its own expense and if requested produce evidence of the same to the Company on demand.  Failure to obtain any licence or consent shall not entitle the Customer to withhold or delay payment of the price.  Any additional expenses or charges incurred by the Company resulting from such failure shall be for the Customer's account.

15.       FORCE MAJEURE

15.1     The Company shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of Goods or Services by the Company being prevented hindered delayed cancelled or rendered uneconomic by reason of circumstances or events beyond the Company's reasonable control ("force majeure circumstances") including but not limited to acts of God war riot strike lock-out trade dispute or labour disturbance accident break-down of plant or machinery fire flood storm difficulty or increased expense in obtaining workmen materials or transport or other circumstances affecting the supply of the Goods or of materials by the Company's normal source of supply or the manufacture of the Goods by the Company's normal means or the delivery of the Goods by the Company's normal route or means of delivery.

15.2     In force majeure circumstances the Company may in its sole discretion terminate any contract for the supply of Goods or Services pursuant to these Conditions or cancel delivery of Goods to the Customer or may, with the agreement of the Customer, deliver Goods at an agreed rate of delivery commencing after any suspension of deliveries.

15.3     If due to force majeure circumstances the Company has insufficient stocks to meet all its commitments the Company may apportion available stocks between its customers at its sole discretion.

16.       SAMPLES

            Any samples supplied to the Customer are supplied solely for information and in no way import any express or implied conditions or warranties as to quality, description, fitness for purpose or satisfactory quality and the Customer shall be deemed to have satisfied itself as to such matters prior to ordering any Goods.

17.       TERMINATION

17.1     If the Customer (being an individual) enters into a voluntary arrangement or if a petition is presented for the making of a bankruptcy order against him or if he compounds with his creditors or if (being a company) an application for an order is made or a resolution is passed for the winding-up of the Customer otherwise than for the purposes of amalgamation or reconstruction (previously approved in writing by the Company) or if a meeting is called to approve the appointment of a liquidator to the Customer or if a petition is presented to the Court for the appointment of a liquidator to the Customer or if a receiver, manager, administrative receiver or administrator is appointed or a petition is presented to the Court for an appointment of an administrator to the Customer or over any part of the Customer's undertaking or if circumstances arise which might entitle the Court or a creditor of the Customer to appoint a receiver, manager, administrative receiver or administrator or which might entitle the Court to make a winding-up order or if the Customer takes or suffers any similar or analogous action in consequence of debt or commits a breach of any contract between the Company and the Customer the Company may without prejudice to any of its other rights stop any Goods in transit and/or suspend further deliveries of Goods or supply of Services to the Customer and/or exercise its rights under Condition 9 and/or by notice in writing to the Customer terminate any contract with the Customer.

17.2     Upon termination of any contracts pursuant to Condition 17.1 any indebtedness of the Customer to the Company shall become immediately due and payable and the Company shall be relieved of any further obligation to supply any goods to the Customer pursuant to such contracts.

18.       GENERAL

18.1     None of the rights or obligations of the Customer under these Conditions may be assigned or transferred in whole or in part without the prior written consent of the Company.

18.2     The Customer agrees to pay due regard to any information supplied by the Company and relating to the use for which the Goods are designed to have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work, and the Customer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the Goods will be safe and without risks to health at all times as are mentioned above.

18.3     The Company shall be entitled to a general lien on all goods and property owned by the Customer in the Company's possession (although the Customer may have paid for the same in full) in satisfaction of the whole or part as the case may be of the unpaid price of any Goods sold and delivered or Services provided to the Customer under any contract.  The Company shall be entitled to offset any sum or sums owing to it from the Customer against any sums owed by the Customer to the Company.

18.4     The headings of these Conditions do not form part of the Conditions and shall not affect their interpretation.

18.5     The Company reserves the right to cancel and/or delay performance of any contract in the event of material or persistent non-performance by the Customer in relation to any contract between the Customer and the Company.

18.6     If any of these Conditions are held to be invalid, illegal or unenforceable in any respect whether in whole or in part such invalidity, illegality or unenforceability shall not prejudice the effectiveness of the rest of these Conditions or the remainder of any part of a Condition affected.

18.7     Failure by the Company to exercise or enforce any rights under any contract subject to these Conditions shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of such right at any time thereafter.

18.8     Any notice hereunder shall be in writing and be deemed to have been duly given if delivered personally or sent by pre-paid first class post (airmail if to an address outside the United Kingdom) to the party concerned at its last known address or by email to the other party's address stipulated in these Conditions or such other address as may be designated from time to time.  Notices delivered personally shall be deemed to have been given when delivered and notices sent by first class post shall be deemed to have been given seven days after despatch (fourteen days if given by airmail). Any notice given by email shall be deemed to have been delivered on the next working day following transmission.

18.9     Any contract to which these Conditions apply shall be governed by and construed in accordance with the Laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.


DOC-T&C-Rev 2.1