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WHOLESALE TERMS AND CONDITIONS OF SALE

The Customer's attention is particularly drawn to Condition 8 and Condition 9.

1.      Interpretation

1.1     The definitions and rules of interpretation in this Condition apply in these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 09.00 to 17:00 on any Business Day.

Conditions: these terms and conditions of sale.

Contract: the contract between John Smedley and the Customer for the sale and purchase of the Goods, incorporating these Conditions.

Customer: the person that purchases the Goods from John Smedley.

Delivery Location: means Lea Mills, Lea Bridge, Matlock, Derbyshire DE4 5AG, unless agreed otherwise by the parties in writing.

Due Date: means thirty days from the date of invoice, unless agreed otherwise in writing by John Smedley.

Force Majeure Event: as defined in Condition 11.

Goods: the goods (or any part of them) set out in the Order or, if different, John Smedley's confirmation of Order.

John Smedley: John Smedley Limited (Company no. 00040000).

Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or similar.

1.2     A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3     A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.4     Words in the singular include the plural and in the plural include the singular.
1.5     Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.6     A reference to writing or written includes email.
1.7     Condition headings do not affect the interpretation of these Conditions.

2.      Basis of Contract

2.1     The Contract shall incorporate these Conditions to the exclusion of all other terms and conditions. Without prejudice to the foregoing, no terms or conditions endorsed on, delivered with or contained in the Customer's Order or any other Customer documents shall form part of the Contract.
2.2     No variation to the Contract or any representations concerning the Goods shall have effect unless expressly agreed in writing and signed by an authorised representative of each party.
2.3     The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of John Smedley which is not set out in the Contract.
2.4     The Order shall be deemed to be an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable specification are complete and accurate.
2.5     The Order shall not be deemed to be accepted by John Smedley until a written confirmation of the Order is issued by John Smedley or (if earlier) when John Smedley delivers the Goods to the Customer.
2.6     A quotation for the Goods given by John Smedley shall not constitute an offer. A quotation, unless it states otherwise, shall be valid from its date until the earlier of 30 days from its date and the date it is withdrawn by John Smedley.
2.7     The Customer may not cancel any Order which has been accepted by John Smedley without the prior written agreement of John Smedley and subject always to the Customer indemnifying John Smedley in full against all losses, costs, damages, charges and expenses incurred by John Smedley as a result of such agreed cancellation.

3.      Description

3.1     The description of the Goods shall be as set out in John Smedley's quotation or, if different, its acceptance of the Order.
3.2     All drawings, descriptive matter, specifications and advertising issued by John Smedley and any descriptions or illustrations contained in John Smedley's catalogues, brochures, or marketing communications, or on its websites, are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

4.      Delivery

4.1     Unless specified otherwise in John Smedley's confirmation of Order, or the parties agree otherwise in writing, John Smedley shall deliver the Goods ex-works (EXW), the Delivery Location (Incoterms 2020).
4.2     Any dates specified by John Smedley for delivery of the Goods are approximate only and time for delivery is not of the essence.
4.3     John Smedley shall have no liability for any delay in delivering or failure to deliver the Goods to the extent that such delay or failure is caused by a Force Majeure Event or the Customer's failure to provide John Smedley with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4     If for any reason the Customer fails to:
a)      take physical possession of the Goods at the Delivery Location when John Smedley delivers the Goods; or
b)      provide John Smedley with the appropriate information, documents, approval or licences to effect delivery,
John Smedley may, at its sole discretion, attempt to redeliver or store the Goods until physical possession of the Goods by the Customer takes place, or, in the case of Condition 4.4(b), until such information is provided by the Customer, and charge the Customer for all related costs and expenses (including storage and insurance).
4.5     If ten days after John Smedley stores the Goods in accordance with Condition 4.4, the Customer has not taken physical possession of them, John Smedley may resell or otherwise dispose of all or part of the Goods and charge the Customer for any shortfall below the price of the Goods.
4.6     Unless otherwise agreed by John Smedley, the Customer shall at its expense provide at the Delivery Location (as appropriate) adequate and appropriate equipment and manual labour for the loading or unloading (as appropriate) of the Goods.
4.7     If John Smedley delivers to the Customer quantity of Goods of up to 5% less than the quantity accepted by John Smedley, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the shortfall, but on receipt of notice from the Customer within three days of delivery of the Goods that the wrong quantity of Goods was delivered, John Smedley shall at its option make a pro rata adjustment to the invoice for the Goods or issue a credit note in respect of the missing Goods.
4.8     John Smedley may deliver the Goods by separate instalments. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.      Risk/title

5.1     Risk in the Goods shall pass to the Customer on delivery of the Goods in accordance with Condition 4.1.
5.2     Ownership of the Goods shall not pass to the Customer until John Smedley has received in full (in cash or cleared funds) all sums due to it in respect of:
a)      the Goods; and
b)      all other sums which are or which become due to John Smedley from the Customer on any account.
5.3     Until ownership of the Goods has passed to the Customer, the Customer shall:
a)      hold the Goods on a fiduciary basis as John Smedley's bailee;
b)      store the Goods (at no cost to John Smedley) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as John Smedley'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 John Smedley's behalf for their full price against all risks to the reasonable satisfaction of John Smedley. On request the Customer shall produce the policy of insurance to John Smedley.
5.4     The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
a)      any sale shall be effected in the ordinary course of the Customer's business at full market value; and
b)      any such sale shall be a sale of John Smedley's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale.
5.5     John Smedley shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from John Smedley.
5.6     The Customer's right to possession of the Goods in which ownership has not passed shall terminate immediately if any of the circumstances referred to in Condition 10.1 occur.
5.7     The Customer grants John Smedley, 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 Customer's right to possession has terminated, to recover them.
5.8     Where John Smedley is unable to determine whether any Goods are the goods in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by John Smedley to the Customer in the order in which they were invoiced to the Customer.
5.9     On termination of the Contract, howsoever caused, John Smedley's (but not the Customer's) rights contained in this Condition 5 shall remain in effect.

6.      Price

6.1     Unless specified otherwise in writing by John Smedley, the price for the Goods shall be John Smedley's list price as communicated by John Smedley to the Customer from time to time.
6.2     John Smedley may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a)      any factor beyond John Smedley's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
b)      any change to the Order agreed in accordance with Condition 2.2, including quantities or types of Goods ordered; or
c)      any delay caused by any instructions of the Customer or failure of the Customer to give John Smedley adequate or accurate information or instructions.
6.3     The price of the Products excludes:
a)      amounts in respect of value added tax or other applicable local taxes, which the Customer shall additionally be liable to pay to John Smedley at the prevailing rate; and
b)      unless John Smedley agrees otherwise in writing, the costs and charges of packaging, insurance and transport (including costs and expenses related to import and export) of the Goods, which shall be payable by the Customer.

7.      Payment

7.1     John Smedley may raise an invoice for the Goods at any point after receipt of the Order.
7.2     Payment of the price for the Goods is due in cleared funds in pounds sterling by the Due Date.
7.3     Time for payment shall be of the essence.
7.4     The Customer shall make all payments due under the Contract in full without any withholding or deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.5     If the Customer fails to pay John Smedley any sum due pursuant to the Contract, the Customer shall be liable to pay interest to John Smedley on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the National Westminster Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.

8.      Quality and Remedies

8.1     Subject to the remainder of this Condition, John Smedley warrants that as at the date of delivery of the Goods, the Goods shall:
a)      be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
b)      conform in all material respects with their description.
8.2     John Smedley shall not be liable for a breach of the warranty in Condition 8.1 unless:
a)      the Customer inspects the Goods as soon as reasonably practicable and in any case within three days of the delivery; and
b)      the Customer gives written notice of the defect to John Smedley within three days of delivery or, in the case of latent defects (meaning any defect which is not reasonably apparent upon inspection), within three days of the latent defect becoming apparent; and
c)      John Smedley is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by John Smedley) returns such Goods to John Smedley's place of business at John Smedley's cost for the examination to take place there.
8.3     John Smedley shall not be liable for a breach of the warranty in Condition 8.1 if:
a)      the Customer makes any further use of such Goods after giving such notice; or
b)      the defect arises because the Customer failed to follow John Smedley's oral or written instructions as to the storage, use or care of the Goods or (if there are none) good trade practice; or
c)      the Customer alters or repairs such Goods without the written consent of John Smedley.
8.4     Subject to Condition 8.2 and Condition 8.3, if any of the Goods do not conform with the warranty in Condition 8.1, John Smedley shall at its option repair or replace such Goods or refund the price of such Goods at the pro rata Contract rate provided that, if John Smedley so requests, the Customer shall, at John Smedley's expense, return the Goods or the part of such Goods which are/is defective to John Smedley (for the avoidance of doubt, John Smedley shall own such Goods or part thereof).
8.5     Any replacement Goods or Goods that are repaired by John Smedley shall be warranted in accordance with Condition 8.1.
8.6     If John Smedley complies with Condition 8.4 it shall have no further liability for a breach of the warranty in Condition 8.1 in respect of such Goods.
8.7     In view of the assurances provided in this Condition, all warranties, conditions and other terms implied by statute or common law (including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 but excluding section 12 of that Act) are, to the fullest extent permitted by law, excluded from the Contract.

9.      Limitation of liability

9.1     The restrictions on liability in this Condition 9 apply to every liability arising under or in connection with the Contract, including any:
a)      breach of the Contract;
b)      use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods;
c)      representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract; and
d)      breach of statutory duty.
9.2     Nothing in these Conditions excludes or limits the liability of John Smedley for:
a)      death or personal injury caused by John Smedley's negligence; or
b)      defective products under the Consumer Protection Act 1987; or
c)      breach of the term implied by section 12 of the Sale of Goods Act 1979; or
d)      fraud or fraudulent misrepresentation; or
e)      any other liability which cannot be lawfully limited or excluded.
9.3     Subject to Condition 9.2, John Smedley shall not be liable to the Customer for any loss of profit, loss of revenue, loss of business, loss of opportunity, loss of or damage to goodwill, pure economic loss, or any indirect or consequential loss.
9.4     Subject to Condition 9.2 and Condition 9.3, John Smedley's total liability to the Customer shall be limited to the total price paid or payable by the Customer for the Goods in connection with the Contract.

10.     Termination

10.1   Without limiting its other rights or remedies, John Smedley may terminate or suspend this Contract with immediate effect by giving written notice to the Customer if:
a)      the Customer fails to satisfy any of John Smedley's requirements in relation to the Customer's creditworthiness;
b)      the Customer fails to pay any invoice by the Due Date;
c)      the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within seven days of that party being notified in writing to do so;
d)      the Customer takes any step or action with a view to or in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
e)      the Customer suspends, threatens to suspend, ceases or threatens to cease payment of its debts or to carry on all or a substantial part of its business; or
f)       the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
10.2   On termination of the Contract for any reason the Customer shall immediately pay to John Smedley all of John Smedley's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, John Smedley shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.3   Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.4   Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11.     Force Majeure

John Smedley shall not be liable to the Customer if it is prevented from or delayed in fulfilling its obligations under the Contract due to circumstances beyond the reasonable control of John Smedley including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic or pandemic, 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 (Force Majeure Event), provided that, if the Force Majeure Event continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to John Smedley to terminate the Contract.

12.     General

12.1   Assignment and other dealings. John Smedley may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of John Smedley.
12.2   Remedies. Each right or remedy of John Smedley under the Contract is without prejudice to any other right or remedy of John Smedley whether under the Contract or not.
12.3   Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
12.4   Waiver. Failure or delay by John Smedley 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 John Smedley of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
12.5   Third parties. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.6   Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England.
12.7   Jurisdiction.
a)      In the event that the Customer is domiciled in the UK, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
b)      In the event that the Customer is not domiciled in the UK, any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Condition 12.7b). The number of arbitrators shall be one. The seat, or legal place, of arbitration, shall be London, UK. The language to be used in the arbitral proceedings shall be English. The governing law of the Contract shall be the substantive law of England.

13.     Notices

13.1   Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
a)      delivered by hand or by pre-paid first-class post or other next working day delivery services at its registered office (if a company) or its principal place of business (in any other case); or
b)      sent by email to (i) in the case of notices served to the Customer, any e-mail address set out in the Order or other Customer documentation provided to John Smedley; (ii) in the case of notices served to John Smedley, customercare@johnsmedley.co.uk
13.2   Notices shall be deemed to have been received:
a)      if delivered by hand, at the time the notice is left at the proper address;
b)      if sent by pre-paid first-class post or other next working day delivery service, at 09:00 on the second Business Day after posting;
c)      if sent by email, at the time of transmission, or, if this time falls outside Business Hours, when Business Hours resume.
13.3   This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.