Terms and Conditions – Cobi Solutions Ltd
i. Definitions. In these Conditions, the following definitions apply: – Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. – Conditions: the terms and conditions set out in this document. – Contract: the contract between the Supplier and the Customer for the sale and purchase of the – – – Goods in accordance with these Conditions. – Customer: the person or firm who purchases the Goods from the Supplier. – Force Majeure Event: any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable. – Goods: the goods (or any part of them) set out in the Order. – Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the – Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be. – Supplier: COBI Solutions Ltd (registered in England and Wales with company number 10981473).
ii. Construction. In these Conditions, the following rules apply: a. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b. A reference to a party includes its personal representatives, successors or permitted assigns.
c. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
d. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
e. A reference to writing or written includes faxes.
2. BASIS OF CONTRACT
a. 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 trade, custom, practice or course of dealing.
b. 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 for the Goods are complete and accurate.
c. The Order shall only be deemed to be accepted when the Supplier issues a confirmation of the Order,
d. 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 the Supplier which is not set out in the Contract.
e. A quotation for the Goods given by the Supplier shall not constitute an offer and/or an order. A quotation shall only be valid for the period stated on said quotation.
3. GOODS i. Goods are delivered without guarantee on grade, surface aspects, surface treatment, zinc coating and tolerances on dimensions.
ii. The Customer is welcome to make their own inspection prior to purchase / shipment
iii. No claims will be accepted
a. The Supplier shall deliver the Goods to or (as the case may be) make them available for collection at such location as the parties may agree (Delivery Location).
b. If the Goods are being delivered by the Supplier, the delivery point shall be the nearest suitable point to the Delivery Location as the delivery driver may determine and the Customer shall provide all necessary labour and equipment to unload the vehicle without undue delay.
c. Delivery of the Goods shall be completed: i. if the Goods are being delivered by the Supplier on the Goods’ arrival at the Delivery Location; or
ii. if the Goods are being collected by the Customer on the completion of loading of the Goods at the Delivery Location.
d. Any dates quoted for delivery are approximate only, 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.
e. 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 identical description and quality at the cheapest available price, less the price 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.
f. If the Customer fails to take or accept (as the case may be) 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: i. Delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
ii. the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including but not limited to, storage, insurance & interest).
g. If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted (as the case may be) delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and recover any/all losses.
h. The Customer shall not be entitled to reject and/or return the Goods for any reason and no claims will be accepted
i. The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for 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. TITLE AND RISK a. The risk in the Goods shall pass to the Customer on completion of delivery.
b. Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for: i. the Goods; and
ii. any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
c. Until title to the Goods has passed to the Customer, the Customer shall: i. hold the Goods on a fiduciary basis as the Supplier’s bailee;
ii. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
iii. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
iv. maintain the Goods in satisfactory condition and keep them insured against all risks for their full value from the date of delivery; and
v. give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
d. If before title to the Goods passes to the Customer the Supplier notifies the Customer in accordance with clause 7.a, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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 in order to recover them.
6. PRICE AND PAYMENT
a. The price of the Goods shall be the price set out in the Order and/or the order confirmation.
b. The Supplier may, by giving notice to the Customer at any time up to five Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: i. 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);
ii. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification for the Goods; or
iii. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
c. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer (unless otherwise agreed/stated)
d. The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer 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.
e. The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
f. The Customer shall pay the invoice in full and in cleared funds within thirty days of the date of the invoice if no other terms have been agreed previously. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
g. If the Customer fails to make any payment due to the Supplier under the Contract by the due date, the Customer shall pay interest on the overdue amount at the rate of 3% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
h. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7. CUSTOMER’S INSOLVENCY OR INCAPACITY
a. If the Supplier reasonably believes that the Customer is or is about to become insolvent or its financial position is such that in the Supplier’s reasonable opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
b. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8. LIMITATION OF LIABILITY a. Nothing in these Conditions shall limit or exclude the Supplier’s liability for any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
b. The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
9. FORCE MAJEURE a. Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
10. GENERAL a. Assignment and subcontracting. i. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
ii. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
b. Notices. i. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, or email to email@example.com.
ii. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address, if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
iii. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
c. Severance. i. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
ii. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
d. Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
e. Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
f. Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
g. Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.