1. Interpretation
The following definitions and rules of interpretation apply in these Conditions
(a) Definitions
Business Day
a day other than a Saturday, Sunday or a public holiday in England, when banks in London are open for business.
Commencement Date
has the meaning given in clause 2.2.
Conditions
these terms and Conditions as amended from time to time in accordance with clause 19.9.
Contract
the contract between Cornelius and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
Control
has the meaning given in section 1124 of the Corporation Tax Act 2010 and the expression change of Control shall be construed accordingly.
Cornelius
means Cornelius Group Plc a company registered in England and Wales with company number 01936460 or a subsidiary of the company (as defined in section 1159 Companies Act 2006) as specified in the Order.
Cornelius Materials
has the meaning set out in clause 5.3.9.
Data Protection Legislation
The UK Data protection legislation and any other European Union legislation to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables
all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer, programs, data, specifications and reports (including drafts).
Delivery Location
has the meaning given in clause 4.2.2.
Goods
the goods (or any part of them) set out in the Order.
Goods Specification
any specification for the Goods, including any related plans and drawings, that is agreed in writing by Cornelius and the Supplier.
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order
Cornelius’s Order for the supply of Goods and/or Services.
Services
the services including the Deliverables to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification
the description or specification for Services agreed in writing by Cornelius and the Supplier.
Supplier
the person or firm from whom Cornelius purchases the Goods and/or Services.
UK Data Protection Legislation
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 206/679), the Data Protection Act 2018, the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(b) Interpretation
(i)
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(ii)
A reference to a party includes its successors and permitted assigns
(iii)
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(iv)
Any words following the terms: including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(v)
A reference to writing or written includes email but not fax.
2. Basis of Contract
2.1
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks 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 the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4
The Customer waives any right it might have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these conditions.
2.5
Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogue or brochures or the website of the Supplier are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6
A quotation for the Goods given by the Supplier shall not constitute an offer. Each quotation shall identify the period of validity from the date of issue.
2.7
Our offers are subject to change and nonbinding. This also applies if we have supplied the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), either product descriptions or documents – also in electronic form – to which we own the intellectual property rights and copyrights.
2.8
When the Customer places an Order for Goods it is considered to be a binding contractual offer. Unless otherwise stated in the Order, the Supplier is entitled to accept this contractual offer within four weeks of receiving it.
2.9
Acceptance can either be declared in writing (e.g. by order confirmation) or delivering the Goods to the Customer.
3. Goods
3.1
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.1 shall survive termination of Contract.
3.2
The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery
4.1
The Supplier shall ensure that:
4.1.1
each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all of the relevant Customer and Supplier reference numbers, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2
if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2
The Supplier shall deliver the Goods to the agreed location set out in the Order, aligned to INCO Terms, or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3
Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4
Any dates for delivery requested by the Customer or quoted by the Supplier are approximate only unless otherwise expressly stated in writing, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5
If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quantity in the cheapest market available, less the product of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6
If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1
delivery of the Goods shall be deemed to have been completed in the AM on the third Business Day after the day on which the Supplier notified the Customer that the Goods were despatched; and
4.6.2
the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7
If the Supplier delivers up to and including 10% more or less than the quantity of Goods ordered by the Customer, they may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro-rata adjustment to the invoice for the Goods.
4.8
The Supplier may deliver the Goods by instalments, which shall be invoiced and paid separately. 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. Quality
5.1
The Supplier warrants that on delivery, whist the Goods remain within shelf life and are stored as indicated, the Goods shall:
5.1.1
conform in all material respects with their description and any applicable Specification;
5.1.2
be free from material defects in design, material and workmanship;
5.1.2
be free from material defects in design, material and workmanship;
5.1.3
be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
5.1.4
be fit for any purpose held out by the Supplier.
5.2
Subject to clause 5.3, if:
5.2.1
the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2
the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.3
the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost;
the Supplier shall replace the defective Goods, or refund the price of the defective Goods in full.
5.3
The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
5.3.1
the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2
the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or if there are none, good trade practice regarding the same;
5.3.3
the defect arises as a result of the Supplier following a Specification supplied by the Customer;
5.3.4
the Customer alters the Goods without the written consent of the Supplier;
5.3.5
the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6
the Goods differ from any Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4
Except as provided in clause 5, the Supplier shall have no liability to the Customer in respect of Goods failure to comply with the warranty set out in clause 5.1.
5.5
The terms implied by sections 13 to 15 of the Sales of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6
The Conditions shall apply to any replacement Goods supplied by the Supplier.
6. Title & Risk
6.1
The risk in the Goods shall pass to the Customer on completion of delivery.
6.2
Title to the Goods shall not pass to the Customer until the Supplier receives payment in full for the Goods.
6.3
Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4
notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and
6.3.5
give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.4
Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1
it does so as principal and not as the Supplier’ agent; and
6.4.2
title to the Goods shall pass form the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5
At any time before title to the Goods passes to the Customer, the Supplier may:
6.5.1
by notice in writing, terminate the Customer’s rights under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
6.5.2
require the Customer to deliver up all Goods in its possession that have not resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored and in order to recover them.
7. Price & Payment
7.1
The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2
The Supplier 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:
7.2.1
any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3
any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3
The price of Goods:
7.3.1
excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2
excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4
The Supplier will invoice the Customer for the Goods on or at the time of dispatch.
7.5
The Customer shall pay each invoice submitted by the Supplier:
7.5.1
within thirty days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
7.5.2
in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
7.6
If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, at the Supplier’s election and without limiting the Supplier’s remedies under clause 9, the Customer 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 7.6 will 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%.
7.7
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.
8. Minimum Order Contract
The terms set out in this clause 8 shall apply to a Minimum Order Contract.
8.1
The Customer shall purchase the Goods specified in the Minimum Order Contract by any Minimum Call-off Order Date(s) (if applicable) and in any event in full for the price and within the Call-off Period as stated in the Minimum Order Contract.
8.2
The Supplier shall hold the Goods specified in the Minimum Order Contract in-stock and exclusively for purchase by the Customer for the price and for the Call-off Period stated in the Minimum Order Contract.
8.3
The Customer may Call-off Goods under a Minimum Order Contract by placing Call-off Orders with the Supplier and which must state that the Call-off Order is an Order placed pursuant to the terms of the Minimum Order Contract. In the event the Call-off Order fails to reference the Minimum Order Contract, the Supplier may, at its discretion, treat the Call-off Order as being an Order for Goods made otherwise than under the Minimum Order Contract.
8.4
In the event the Customer fails to Call-off the required quantity of Goods by any Minimum Call-off Order Date(s) (if applicable) and otherwise in full within the Call-off Period, the Customer shall be deemed to have Called-off the relevant Goods on the Call-off Dates(s) or on the last Business Day of the Call-off Period as applicable (Deemed Call-Off Order) and the Customer shall be liable to make payment to the Supplier in a sum equal to the price of the Goods subject to the Deemed Call-off Order pursuant to clause 7.5.
8.5
The Supplier shall make the Goods subject to the Deemed Call-Off Order available for delivery to the Customers premises pursuant to clause 4. In the event the Customer fails to accept delivery of the Goods pursuant to the Deemed Call-off Order within a period of 30 days from the date of the Deemed Call-off Order the Supplier shall be entitled, at its discretion, to dispose of the Goods upon which the Customer shall be liable to pay to the Supplier the costs incurred by the Supplier in the disposal of the Goods.
9. Limitation of Liability
9.1
The Supplier has obtained insurance cover in respect of its own legal liability for claims made against the Supplier. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
9.2
The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort, misrepresentation, restitution or otherwise.
9.3
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.3.1
death or personal injury caused by negligence;
9.3.2
fraud or fraudulent misrepresentation;
9.3.3
breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.3.4
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.4
Subject to clause 8.3, the Supplier’s total liability to the Customer shall not exceed £1,000,000 million (one million pounds).
9.5
Subject to clause 8.3, the following types of loss are wholly excluded:
9.5.1
loss of profits;
9.5.2
loss of sales or business;
9.5.3
loss of agreements or contracts;
9.5.4
loss of anticipated savings;
9.5.5
loss of use or corruption of software, data or information;
9.5.6
loss of damage to goodwill; and
9.5.7
indirect or consequential loss.
9.6
The clause 8 shall survive termination of the Contract.
10. Termination
10.1
Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
10.1.1
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 five days of that party being notified in writing to do so;
10.1.2
the Customer takes any step or action in connection with its entering administration, provisional liquidation or any consumption or arrangement with its creditors other than in relation to a solvent restructuring, obtaining a moratorium, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business;
10.1.3
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial
part of its business; or
10.1.4
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
Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other
contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1.2 to
clause 9.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.3
All amounts payable by Cornelius under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Cornelius, Cornelius shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
10.4
On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.5
Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.6
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11. Force Majeure
11.1
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. A Force Majeure Event may include but is not limited to acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, fire, civil commotion or riots, terrorist attack, or accident. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for sixty days, the party not affected may terminate the Contract by giving seven days written notice to the affected party.
12. General
12.1
Assignment and other dealings
12.1.1
The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over a deal in any other manner with all or any of its rights or obligations under the Contract.
12.1.2
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 the Supplier.
12.2
Confidentiality
12.2.1
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.2.
12.2.2
Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligation under the Contract.
Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.2.3
Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3
Entire Agreement
12.3.1
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.3.2
Each party agrees that it shall have no remedies in respect of any statement representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
12.4
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5
Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a
waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.6
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. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision
12.7
Notices
12.7.1
Any notice or other communication 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 service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified.
12.7.2
Any notice or communication 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 9:00am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c), business hours means 9:00am to 5:00pm
Monday to Friday on a day that is not a public holiday in the place of receipt.
12.7.3
The clause 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.
12.8
Third Party Rights. Unless it expressly states otherwise, 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.
12.9
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 and Wales.
12.10
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including no-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter of formation.