Terms of Service

 

OUR TERMS AND CONDITIONS



  1. Definitions and Interpretation

    1.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

 

“Contract”



‘’Conditions’’

means the contract for the purchase and sale of Products, as explained in Clause 3;


the terms and conditions set out in this document as amended from time to time in accordance with clause 15.6

‘’Data Protection Legislation’’

all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

‘’Force Majeure Event’’

an event, circumstance or cause beyond Our reasonable control, including but not limited to; power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond our reasonable control.

“Order”

means your order for the Products;

“Price”

means the price payable for the Products;

“Products”

means the products (or any part of them) which are to be supplied by us to you as specified in your Order;

“Special Price”

means a special offer price payable for the Products;

‘’Storage Fees’’

the fees as set out in clause 7.2.

‘’Storage Location’’

shall mean Möbel-Transport AG, Fine Art Division, CH-8010 Zürich, Switzerland or such other storage facility as we decide notifying to you in writing. 

“We/Us/Our”

means Smith & Partner Limited, trading as Smith & Partner, a limited company registered in England and Wales under number 09808427, whose registered address is Unit 17.2 The Leather Market, Weston Street, London, SE1 3ER; and

“You/your”

means the person making an Order. 



1.2. Each reference in these Terms and Conditions to “writing” and any similar expression includes electronic communications whether sent by email, fax or other means.

 

  1. The Contract

 

2.1. These Conditions apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. 

 

2.2. The Order constitutes an offer by You to purchase the Products in accordance with these Conditions. 

 

2.3. You waive any right You might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents provided by You that is inconsistent with these Conditions. 

 

2.4. Any samples, drawing, descriptive matter or advertising produced by Us and any descriptions or illustrations contained in the Our catalogues, brochures, marketing literature or website are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force. 

 

2.5. A quotation for the Products given by Us shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue. 

 

2.6. A legally binding contract between Us and You will be created upon our acceptance of Your Order, indicated when We confirm that We have accepted Your Order by email. 

 

  1. Products

 

3.1. The Products are described in Our sales and marketing literature and on the Our website. We have made every reasonable effort to ensure that the Products conform to illustrations, photographs and descriptions provided on Our website and in Our sales and marketing literature and any descriptions provided by Our salespeople.  We cannot, however, guarantee that all descriptions, illustrations and/or photographs will be precisely accurate due to discrepancies that may arise during the printing process and/or differences in the colour reproduction of electronic displays. 

 

3.2. We reserve the right to make any changes in the specification of the Products from time to time if required by any applicable statutory or regulatory requirements, and We shall notify You in any such event.

3.3. We offer no guarantee as to the value of the Products and you should be aware that any Product may decrease in value at any time after they have been purchased from Us.  

 

  1. Orders

 

4.1. If You wish to make changes to the Product you have ordered please contact Us. We will let you know if the change is possible. If it is possible We will let You know about any changes to the price of the Product, the timing of supply or anything else which would be necessary as a result of your requested change and ask You to confirm whether You wish to go ahead with the change. If We cannot make the change or the consequence of making the change are unacceptable to Us, You may end your contract in accordance with clause 11, provided the Product has not yet been dispatched. 

 

4.2. We may cancel your Order at any time and for any reason before We dispatch the Products and Our sole liability in that event will be to refund all the monies You have paid Us for the Product.




  1. Price and Payment

 

5.1. The Price of the Products shall be the price set out in the Order. 

 

5.2. If We offer a Special Price, it will be valid for the period of 48 hours from the date We offered it or, if the Special Price is part of an advertised special offer, for the period shown in the advertisement. If the Special Price requires a promotion or voucher code and You are unable to provide a valid promotion or voucher code when making your Order, the Special Price will not be available to You. Orders placed during the validity period of a Special Price will be accepted at the Special Price even if We do not confirm your Order until after the period has expired. 

 

5.3. We may, by giving notice to You at any time before delivery, increase the price of the Product to reflect any increase in the cost of the Products that is due to:

 

5.3.1. any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour or material); 

 

5.3.2. any request by You to change the delivery date(s), quantities or types of Products ordered; or 

 

5.3.3. any delay caused by any instructions of You or failure of You to give Us adequate or accurate information or instructions. 

 

5.4. The price of the Products:

 

5.4.1. Excludes value added tax V.A.T. (unless stated otherwise in the Order), which You shall additionally by liable to pay to Us at the prevailing rate subject to the receipt of a valid VAT invoice; and 

 

5.4.2. Excludes import duty and any other taxes, duties or imposition made in the location where delivery is made, and You shall additionally be liable for these fees at the prevailing rate, if applicable;

 

5.4.3. Includes the cost of delivery by uninsured, recorded first class mail; 

 

5.4.4. Includes a 2% broker fee, exclusive of VAT unless stipulated otherwise in the Order. 

 

5.4.5. Should You require a safer means of delivery, You must tell Us in advance of delivery and You shall additionally be liable for the extra cost that You will pay to Us.

 

5.5. We accept payment with all major debit cards, cheques and via bank transfer. When You must pay depends on what product You are buying: 

 

(a) For physical Products, You must pay for the Product before We despatch them. We will not charge your credit card or debit card until we dispatch the Product to You. 

 

(b) For digital content, You must pay the products before You download them. 

 

5.6. If You fail to make a payment due to Us under the Contract by the due date, then, You shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

 

5.7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

  1. Delivery 

 

6.1. We shall ensure that:

 

6.1.1. Each delivery of the Products is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Product, special storage instructions (if any); and 

 

6.1.2. If We require You to return any packaging materials to Us, that fact is clearly stated on the delivery note. You shall make any such packaging material available for collection at such times as We shall reasonably request. Returns of packaging materials shall be at Our expense. 

 

6.2. We shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after We notify You that the Products are ready. 

 

6.3. Delivery is completed once the Products have been unloaded at the Delivery Location. 

 

6.4. Where you have instructed us to store the Products on your behalf at the Storage Location in accordance with clause 7 below, delivery is deemed to have been completed once the Products have been unloaded at the Storage Location. 

 

6.5. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or Your failure to provide Us with adequate instructions or any other instructions that are relevant to the supply of the Products. 

 

6.6. If You fail to take delivery of the Products within 5 Business Days of Us notifying You that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event:

 

6.6.1. delivery of the Products shall be deemed to have been completed in three Business Days after the day on which the Supplier notified You that the Products were ready; and 

 

6.6.2. we shall store the Products until you take possession of them and charge You for all related costs and expenses (including insurance). 

 

  1. Storage 

 

If you have asked us to store the Products:

 

7.1. we will arrange (at your risk) for the Non-Fungible Tokens to be stored in a secure wallet, free of charge.

 

7.2. we will arrange (at your risk) for the artworks to be delivered to the Storage Location. The first year of storage is free of charge, and hereafter the Storage Fees shall be:

 

Combined price of Products in storage

Storage Fee 

£0 - £10,000

£150 + VAT per annum 

£10,001 - £50,000

£350 + VAT per annum

£50,001 - £100,000

£600 + VAT per annum 

£100,001 - £150,000

£875 + VAT per annum

£150,001 - £200,000

£1,200 + VAT per annum 

£200,001 - £500,000

£1,500 + VAT per annum

£500,001 - £1,000,000.00

£2,500 + VAT per annum 



7.3. Storage Fees are stated exclusive of VAT which shall be paid by You.

 

7.4. We may increase the Storage Fees on an annual basis with effect from each anniversary of the date of storage of the Product in line with the percentage increase in the Retail Prices Index in the preceding 12- month period. 

 

7.5. Storage Fees shall be invoiced monthly in advance which You shall pay:

 

(a) Within [30] days of the date of the invoice; and

(b) In full and in cleared funds to a bank account nominated in writing by Us; and time for payment shall be of the essence of the contract. 

 

7.6. We shall have a general and particular lien on the Products in Our possession as security for payment of all sums claimed by Us from You. The Storage Fees shall continue to accrue on any Products detained under lien. If an invoice for the Storage Fees is not paid in full on its due date for payment, We may without prejudice to Our other rights and remedies, give notice in writing to You of Our intention to sell or otherwise dispose of some of the Products in Our possession if the amount outstanding is not paid within [30] days. If the amount due is not paid by the expiry of such period, We may sell or otherwise dispose of some or all of the Products in Our possession, as agent of You and your expense and risk, and shall remit the proceeds of sale or disposal of such Products to You after deduction of all amounts due to You and the expenses incurred by Us for the sale of the disposal of the Goods. We shall not be liable for the price obtained for the sale or disposal of the Products.

 

7.7. Where the Products are liable to perish or deteriorate, Our right to sell or otherwise dispose of the Products in clause 7.6 shall arise immediately upon any sum becoming due subject only to Us taking all reasonable steps to notify You of our intention to sell or otherwise dispose of all the Products before doing so. 

 

7.8. We arrange storage as your agent and You agree that, for the purposes of the contract between You and Us, and for the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, delivery to such storage constitutes delivery to You.

 

7.9. If You wish to receive the Products from the Storage Location then We shall deliver these to You in accordance with clause 6. You shall be responsible for paying any import tax or VAT as a result of the delivery of the Products to You from the Storage Facility. 

 

7.10. We reserve the right to deliver the Products from the Storage Location to you at any time. Delivery in accordance with this clause 7.10 shall be to the home address most recently provided by you. You shall be refunded the Storage Fees paid (if any) in respect of the period after which delivery in accordance with this clause 7.10 has been made.

 

7.11. This clause 7 survives termination. 

 

  1. Title and Risk

 

8.1. The risk in the Products shall pass to You on completion of delivery (whether to You, the Delivery Location (if different) or the recommended Storage Location).

 

8.2. You own the Product when we have received payment in full. 

 

8.3. If the Products have been delivered to You or the Delivery Location (if different), You shall, until title of the Products has passed to You:

 

8.3.1. store the Products separately from all other goods held by You so that they remain readily identifiable as Our property; 

 

8.3.2. not remove, deface not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

 

8.3.3. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;  and give Us such information as We may reasonably require from time to time relating to:

 

8.4. If the Products are delivered to the Storage Location, You must keep them insured against all risks for their full price from the date of delivery.

 

8.5. We only supply Products for domestic and private use by consumers. We make no warranty or representation that the Products are fit for commercial, business or industrial use of any kind (including resale).  We will not be liable to you for any loss of profit, loss of business, interruption to business or for any loss of business opportunity. 

 

  1. Faulty, Damaged or Incorrect Products

 

9.1. We are under a legal duty to supply products that are in conformity with this contract. See the box below for a summary of your key legal rights in relation to the Products. Nothing in these terms will affect your legal rights. 

 

9.2. If You have any questions or complaints about the Product You can contact Us in writing to the email: info@smithandpartner.co.uk.

 

9.3. If You wish to exercise your legal rights to reject the Product, We will arrange to collect the Product or the Product can be returned using the packaging in which they were supplied to you and, unless We agree otherwise, must not be returned using any service other than the one We provide. We will pay the costs of postage. 

 

9.4. Your right to a refund or replacement does not apply if We have told You of any defect before We accept your Order. 

 

9.5. Refunds (whether full or partial) under this Clause 9 will be made within 14 days of the day on which We receive the Products and agree if they are defective.


10. Limitation of Liability

 

10.1. We have obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,0000 per claim. The limits and exclusions in this clause reflect the insurance cover We have been able to arrange, and You are responsible for making your own arrangements for the insurance of any excess loss. 

 

10.2. The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

 

10.3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

10.3.1. death or personal injury caused by negligence;

 

10.3.2. fraud or fraudulent misrepresentation; 

 

10.3.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

 

10.3.4. defective products under the Consumer Protection Act 1987. 

 

10.4. Subject to clause 10.3, Our total liability to You shall not exceed £1,000,000.

 

10.5. Subject to clause 10.3, the following types of loss are wholly excluded:

 

10.5.1. loss of profits;

 

10.5.2. loss of sales or business;

 

10.5.3. loss of agreements or contracts;

 

10.5.4. loss of anticipated savings;

 

10.5.5. loss of use or corruption of software, data or information;

 

10.5.6. loss of or damage to goodwill; and

 

10.5.7. indirect or consequential loss.

 

10.6. Owning artwork carries with it a risk that it could decrease in value. We are not responsible, and shall have no liability for, any decrease in the Product(s)’s value. Any information given by us in relation to selling the Products is given as guidance only and you should obtain your own independent expert advice before selling any Product. 

 

10.7. This clause 10 shall survive termination of the Contract.

 

  1. How to end the Contract with us (including if you have changed your mind)


11.1. If you wish to exercise your right to cancel under this Clause 11you must tell us of your decision by doing one of the following:



  1.   by telephone on 08453096394;
  2.  by email at info@smithandpartner.co.uk
  3.  by post at is 3rd Floor Offices, 93 Great Suffolk Street, SE1 0BX.

 

11.2. You must return the Products to Us no more than 14 days after the day on which you have informed Us that You wish to cancel under this Clause11

 

11.3. If You wish to return Products to Us under the provisions of this Clause 11, You should contact Us at info@smithandpartner.co.uk and We will arrange for their collection. In view of the nature of the Products, they should be returned using the packaging in which they were supplied to You and, unless We agree otherwise, must not be returned using any service other than the one We provide. We will pay the cost of all returns. If You do not follow the provisions of this Clause 11, We may be unable to make any refund if the Products are damaged in transit to Us. 

 

11.4. If You are exercising your right to change your mind We may reduce the refund of the price to reflect any reduction in the value of the Products, if this has been caused:

 

11.4.1. by your handling them in a way which would not be permitted in a shop. If We refund You the price paid before We are able to inspect the Products and later discover You have handled them in an unacceptable way, You must pay Us an appropriate amount. 

 

11.4.2. by not returning the Products in the packaging supplied to You. 

 

11.5. Refunds under this Clause 11 will be made within 14 days of the day on which We receive the Products from you to the same payment method You used when purchasing the Products. 

 

  1. Events Outside of Our Control (Force Majeure)

           12.1. We will not be in breach of the Contract nor liable for any failure or delay in performing Our obligations under the Contract if such delay or failure result from a Force Majeure Event.  In such circumstances We shall be entitled to a reasonable extension of time for performing such obligations. 

 

  1. Our rights to end the contract

 

          13.1. We may end the contract for a Product at any time by writing to You if:

a) You do not make any payment to us when it is due and You still do not make payment with 30 days of Us reminding you that payment is due;

 

b) You do not, within a reasonable time of Us asking for it, provide Us with information that is necessary for us to provide the Products; 

 

c) You do not, within a reasonable time, allow Us to deliver the Products to You or collect them from Us. 


d) 13.2. If We end the contract in the situations set out in clause 13.2 We will refund any money You have paid in advance for the Products We have not provided but We may deduct a or charge You reasonable compensation for the net costs, We will incur as a result of your breaking the contract.

 

  1. How we Use Your Personal Information (Data Protection)

              14.1. All personal information that We may use will be collected, processed and held in accordance with the Data Protection Legislation

              14.2. For complete details of our collection, processing, storage and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of Your rights and how to exercise them, and personal data sharing (where applicable), please refer to Our Privacy Notice.

 

  1. Other Important Terms

       15.1. We may assign our obligations and rights under these Terms and Conditions to a third party. If this occurs, You will be informed in writing.  Your rights under these Terms and Conditions will not be affected and Our obligations under these Terms and Conditions will be transferred to the third party who will remain bound by them. 

      15.2. You may not assign your obligations and rights under these Terms and Conditions without Our express written permission. 

      15.3. The Contract is between You and Us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.

     15.4. If any of the provisions of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that/those provision(s) shall be deemed severed from the remainder of these Terms and Conditions.  The remainder of these Terms and Conditions shall be valid and enforceable. 

     15.5. Except as set out in this Conditions, no variation of the Contract shall be effective unless it is agreed it writing and signed by the parties (or their authorised representatives). 

      15.6. No failure or delay by Us in exercising any of our rights under these Terms and Conditions means that We have waived that right, and no waiver by Us of a breach of any provision of these Terms and Conditions means that We will waive any subsequent breach of the same or any other provision.

 

  1. Governing Law and Jurisdiction

          16.1. These Terms and Conditions shall be governed by and construed in accordance with the law of England and Wales. 

         16.2. Any dispute, controversy, proceedings or claim between you and us relating to these Terms and Conditions shall be subject to the jurisdiction of the courts of England and Wales.