Terms and Conditions of Sale (Wholesale) for S.M.S. (Wholesale) Co.

Definitions

The “Buyer” means the person who buys or agrees to buy Goods from the Seller. The ”Seller” means SMS (Wholesale) . “ Conditions” means the Conditions of Sale set out in this document and any special conditions agreed in writing by the Seller.

Conditions

All contracts of sale made by the Seller shall be deemed to incorporate these terms and conditions which shall prevail over any other document or communication from the Buyer.

All orders are accepted and fulfilled subject to these conditions of sale unless otherwise agreed in writing by the Seller.

Acceptance of delivery of Goods shall be deemed conclusive evidence of the Buyers acceptance of these conditions.

Prices and Delivery

All prices are exclusive of VAT at the current rate.

The price shall be that on the Seller’s current price list, or if applicable the price contained in the Seller’s Quotation.

Should the products price change between receipt of order and dispatch the Buyer will be notified immediately and given the opportunity to cancel the order.

Payment is due in full before dispatch of the goods, or on the terms of credit agreed which shall not be more than 30 days from the date of the invoice.Time for payment shall be of the essence and any failure to pay shall entitle the Seller at it’s option to treat the Contract as repudiated by the Buyer or to delay delivery until paid.

If any act or proceedings shall be commenced in which the Buyer’s solvency is concerned, all monies under any transaction covered by these Conditions shall become immediately due and payable.

Orders over 100.00 net delivered to a single delivery point include standard next day deliveries to UK mainland only. Highlands of Scotland, Islands and timed deliveries are by special quotation. All Goods prices are exclusive of packing, postage and carriage which will be by post or carrier.

Whilst every reasonable effort shall be made to keep any delivery date, time of delivery shall not be of the essence and the Seller shall not be liable for any losses, costs, damages or expenses incurred by the Buyer or any other person or Company arising directly out of any failure to meet any estimated delivery date.

Credit Card Payments

The following Credit Cards are accepted for payment with no surcharge. VISA– MASTERCARD

Interest on Overdue Invoices

Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the payment at 2% above the Lloyds TSB PLC base lending rate for the time being in force per calendar month.

Ownership and Risk

The risk in Goods shall pass to the Buyer upon delivery of the Goods or upon the Goods being appropriated to the Buyer but kept at the Seller’s premises at the Buyer’s request.

The Seller and the Buyer agree that until the Seller has been paid in full for the Goods:

a)Property in the Goods shall remain with the Seller and the Buyer shall hold the goods as a bailee and be fully accountable to the Seller in respect thereof until such time as payment in full has been received by the Seller for all Goods delivered to the Buyer under this contract together with any other sum payable in respect of the goods under this contract.

b)Without prejudice to the Buyer’s continuing fiduciary obligations to the Seller as a bailee of the Goods the Buyer shall be entitled to sell the goods and pass the property in the same to third parties in the normal course of it’s business until otherwise notified by the Seller in writing, and until such time as all sums owing by the Buyer to the Seller under this contract have been paid:

i)the proceeds of resale and/or the claims to such proceeds shall be the Seller’s and held for the Seller and the Buyer shall pay all proceeds of resale into a bank account in the Buyer’s name separate to all other monies of the Buyer which account shall be entitled to retain any excess in such account over the amount due from the buyer to the Seller hereunder; and

ii)the Buyer shall store the Goods so that they are clearly shown to be the property of the Seller.

c) As bailor of the Goods the Seller by it’s employees or agent shall (without prejudice to the Buyer’s continuing fiduciary obligations) be entitled to enter upon or into any land, buildings or vehicles where Goods or part of them are situated or are reasonably thought to be situated to retake possession of the same, if the Seller judges that the amount outstanding from the Buyer on the general statement of account between the parties is in excess of the credit limit the Seller is willing to accord the Buyer.

The Buyer shall inspect the Goods immediately on receipt and shall notify the Seller within five working days of delivery if the goods are damaged or do not comply with any of the contract.If the Buyer fails to do this he is deemed to have accepted the Goods.

Any Goods in respect of which any claim of defect or damage is made shall be returned to the Seller intact, together with the original packing at the Buyer’s risk, transportation paid.

Limited Warranty and Disclaimer.

a)The Seller warrants the Goods sold hereunder, if properly installed, maintained, and operated under normal conditions with competent supervision, to be free from any defects in material, operation, and workmanship for a period of 12 months from the date of invoice evidencing the Seller’s sale of Goods to the Buyer. The obligations of the Seller and the Buyer’s sole exclusive remedy hereunder shall be limited to the replacement or repair of any Goods which are returned to the Seller, transportation prepaid, and there determined by the Seller to be at variance with the warranty. In no event shall either party be liable to the other for Special, Exemplary, Punitive, Consequential, Incidental or Indirect damages, including but not limited to, loss of anticipated profits or revenue, economic loss or cost of substitute or replacement equipment, regardless of the nature of the claim.

b)Notwithstanding any of the foregoing, we shall have no obligation hereunder in the event the goods become defective in whole or in part as a result of improper installation, maintenance, or repairs not made by the Seller, unauthorised modifications, or as a result of removal, improper use, abnormal operation by the Buyer, or any other misuse or mistreatment of the Goods, including but not limited to damage caused by impact with other objects, dropping, falls, theft, spilled liquids, or immersion in liquids.

Force Majeure

In the event that the Seller is prevented from carrying out it’s obligations under a contract for sale as a result of any cause beyond it’s control such as but not limited to Acts of God, War, Strikes, Lock-outs, Flood and Failure of third parties to deliver goods, the Seller shall be relieved of it’s obligations and liabilities under such contract for as long as such fulfilment is prevented.

No Waiver

The Seller’s failure to insist upon strict performance of any provision of these conditions shall not be deemed to be a waiver of it’s rights or remedies in respect of any present or future default of the Buyer in performance or compliance with any of these conditions.

Law

Any contracts shall in all respects be construed and operate as an English contract and in conformity with English Law.

If any part of these terms and conditions that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity or enforceability of the remainder of these terms and conditions.