Everyday Earth | SMI - Product brochure - Page 89
Delivery may take place by way of instalments in such quantities as
SMI may reasonably decide. Instalments shall be separate obligations
and no breach in respect of one or more of them shall entitle the
Customer to cancel any subsequent instalment or repudiate the
Contract as a whole.
4.4
Notwithstanding any other provision of the Contract, in the event of
non-availability of any Products ordered, SMI may deliver a
reasonable substitute. Substitution may affect the price payable by
the Customer. SMI shall notify the Customer of any substitution and
any resultant change in the price payable by the Customer.
4.5
SMI shall be deemed to have accepted Products 2 Business Days after
Delivery. After acceptance the Customer shall not be entitled to reject
Products which are not in accordance with the Contract.
5
RISK AND PROPERTY
5.1
Risk of loss or damage to the Products shall pass to the Customer at
the time of Delivery of the Products.
5.2
Title to the Products, regardless of Delivery, shall not pass to the
Customer until the Customer has paid SMI in full for those Products
and VAT thereon, and all other sums due from the Customer to SMI at
that time. SMI may attribute money received from the Customer as
being payment for any Products as SMI thinks fit, regardless of the
circumstances.
5.3
Until such time as the title in the Products has passed to the Customer
under Clause 5.2, the Customer shall:
5.3.1
store and mark it in such a way that it is readily identifiable as
SMI’s property, and shall not mix it with any other goods or
equipment;
5.3.2
not remove, deface or obscure any identifying mark or
packaging on or relating to the Products;
5.3.3
maintain the Products in a satisfactory condition, and keep
them insured against all risks for their full price from the date of
Delivery;
5.3.4
not pledge or allow any encumbrance, lien, charge or other
interest to arise or be created over the Products; and
5.3.5
5.4
not dispose of or deal with the Products or any documents of
title relating to it or any interest in it, except that the Customer
may, subject to clause 5.3.3, on its own account use the Products
in the ordinary course of its business operations, provided that
the Customer’s right to use the Products shall automatically
cease if the Customer is subject to an Insolvency Event.
6.2
If any of the Products do not conform to the warranty in clause 6.1 SMI
will, at its option, repair or replace those Products or make, so far as is
fair, a refund of all or a part of the price. If SMI complies with this
obligation, it shall have no further liability in respect of, or arising from,
such non-conformity. Any repaired or replaced Products shall be
governed by the terms of the Contract.
6.3
Except as expressly stated in the Contract, all warranties, conditions
and terms, whether express or implied by statute, common law or
otherwise relating to satisfactory quality, fitness for purpose and
suitability) are hereby excluded to the fullest extent permitted by law.
7
CUSTOMER OBLIGATIONS
7.1
The parties have determined that, for the purposes of Data Protection
Legislation, both parties shall act as controller. Should SMI be required
to act as processor on behalf of the Customer under the Contract for
any reason, the parties shall then enter into a data processing
agreement to be agreed between the parties in good faith. The
Customer shall assist SMI in complying with all applicable requirements
of the Data Protection Legislation as and when required by SMI.
7.2
The Customer is responsible for using the Products in accordance with
instructions supplied by SMI and/or the manufacturer of the Products
and SMI shall not be responsible for any damage, loss or claims arising
from any failure by the Customer to comply with such instructions.
7.3
If the Customer becomes aware that any third party has made or is
likely to make any claim in respect of any Products (including, without
limitation, as to defects in them or rights infringed by them) it shall
immediately inform SMI in writing and shall afford to SMI reasonable
assistance (including, without limitation, permitting SMI to have
conduct of any proceedings) which SMI may reasonably require to
enforce its rights and defend such claim.
7.4
Without prejudice to any duty of the Customer at common law, SMI
shall be entitled to require the Customer to take such steps as SMI may
reasonably require to mitigate or reduce any losses or claims that may
arise in relation to the Contract.
8
CUSTOMER BRANDING AND INTELLECTUAL PROPERTY
8.1
If the Customer requires that the Products incorporate any Customer
Branding, SMI shall provide the Customer with a sample of the
Products incorporating such Customer Branding and the Customer
shall notify SMI in writing of its approval of such samples. The
Customer’s approval shall not be unreasonably withheld or delayed
and shall be irrevocable once notified to SMI.
8.2
The Customer hereby grants SMI a non-exclusive royalty free licence
to use the Customer Materials for the purpose of providing the
Products and as otherwise required by SMI to comply with its other
obligations under the Contract. The Customer warrants that the use of
Customer Materials by SMI shall not infringe the rights of any third
party including without limitation any third party Intellectual Property
Rights.
8.3
Except for any Intellectual Property Rights arising in the Customer
Materials, all Intellectual Property Rights in the Products and their
specification, design, packaging, labelling and other materials
supplied with or in connection with any of the Products shall as
between the parties remain at all times vested in SMI. No Intellectual
Property Rights of SMI are transferred to the Customer and no licences
to use any Intellectual Property Rights of SMI are granted to the
Customer. .
8.4
The Customer shall not remove, obscure or otherwise alter or interfere
with any of the logos, marks or branding appearing on any of the
Products or their packaging.
9
INDEMNITY
If any of the following occur:
5.4.1
payment of an invoice becomes overdue by the Customer;
5.4.2
the Customer is in breach of any of its obligations under a
Contract or any other agreement between SMI and the
Customer;
5.4.3
the Customer exercises any right to terminate a Contract or any
other agreement between SMI and the Customer; or
5.4.4
if the Customer is subject to an Insolvency Event or SMI
reasonably expects that the Customer will be subject to an
Insolvency Event, then in any such case:
5.4.5
SMI may by written notice terminate the Customer’s right (if still
subsisting) to use the Products; and/or
5.4.6
Without prejudice to any other rights or remedies available to
SMI, SMI shall be entitled upon demand to the immediate
return of all the Products where title has not passed to the
Customer in accordance with clause 5.2, and the Customer
irrevocably authorises SMI to enter into any place where the
Products and any documentation are stored to recover such
Products and documentation. The Customer shall take all
reasonable steps to help SMI recover the Products. Recovery by
SMI of the Products shall not cancel the Customer’s liability to
pay the whole or balance of the price for the Products.
5.5
SMI shall maintain in force product liability insurance. If any claim is
made against the Customer for damage or injury arising out of or in
connection with a defect in the Products, the Supplier shall, except to
the extent that the claim is due to any defect in any specification
provided by the Customer or Customer Materials, shall indemnify the
Customer against all damages arising out of the damage up to the
aggregate value of £2,000,000 (two million GBP.)
6
QUALITY
6.1
SMI warrants that the Products will materially conform to the
description of the Products in the Contract or otherwise provided in
writing by SMI to the Customer.
SMI: EVERYDAY EARTH CATALOGUE
4.3
The Customer hereby indemnifies and shall keep SMI indemnified
against all losses suffered or incurred by SMI in respect of all and any
demands, liabilities, expenses, claims (including but not limited to any
settlements of claims whether before or after the issue of proceedings),
judgment sums (including but not limited to sums arising from consent
orders or judgments), damages, direct, indirect or consequential
losses, costs (including but not limited to legal and other professional
costs) suffered or incurred by SMI arising out of or in connection with
any claim made against SMI for actual or alleged infringement of a
third party’s intellectual property rights arising out of or in connection
with SMI’s use of the Customer Materials.
10
TERMINATION
10.1
Without affecting any other rights and remedies it might have, SMI
shall be entitled to terminate the Contract with immediate effect and/
or suspend its performance at any time without liability to the
Customer by giving written notice to the Customer at any time if the
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