Terms And Conditions
KERNOW FIXINGS LTD
Terms and Conditions of Sale
In these terms and conditions of sale ("Terms and Conditions"), unless the context requires otherwise:
“Contract” means an agreement between Us and You for the supply of Goods and/or Services as more particularly described in the Order
“Kernow/We/Us/Our/Ours” means Kernow Fixings Ltd, whose registered office is Manfield Way, St. Austell, Cornwall, PL25 3HQ, company registration number 10792155
"Buyer/You/Yours" means the company, firm, body or person purchasing the Goods and/or Services;
"Goods" means the goods which We agree to supply in accordance with these Terms and Conditions;
“Intellectual Property Rights” means all vested, contingent and future rights of copyright and all rights in the nature of copyright in and all accrued rights of action and all other rights of whatever nature in and to the Technical Design Information, whether now known or in the future created, to which We are now or may at any time after the date of this Contract be entitled by virtue of or under any of the laws in force worldwide.
"Manufacturer" means the manufacturer of the Goods notified to You by Us from time to time;
"Order" means a purchase order in respect of the Goods and/or Services that you issue to Us;
"Services" means work and/or services or any of them to be performed by Us for You.
“Technical Design Information” means all the plans, drawings, models, specifications, reports, design documents and any other materials provided by Us for the Purposes of this Contract;
1.1 These Terms and Conditions shall be incorporated into every contract ("the Contract") for the supply of Goods and/or Services by Us. The Contract will be subject to these Terms and Conditions alone.
1.2 Any variation of the Terms and Conditions must be expressly agreed in writing and signed by Us or Our authorised representative.
1.3 Any description contained in Our catalogues, samples, price lists on our websites or other advertising material is intended only to present a general picture of Our Goods or Services and will not form a representation or be part of the Contract.
1.4 Any quotation that We issue may be amended or withdrawn at any time before We enter into a contract with You. Where a quotation is prepared based upon information You supply Us it is Your responsibility to check that the information is accurate.
1.5 Where Goods are to be supplied from stock, such supply is subject to availability of stock at the date of delivery.
2. SPECIFICATIONS, NON-STANDARD ORDERS, ALTERATIONS
2.1 If Goods and/or Services are supplied in accordance with Your specifications ("Specifications") You will be responsible for the Specifications and for ensuring that they are suitable for the use that You intend and that they are accurate and We accept no liability in respect of this.
2.2 We reserve the right to make any changes in the Specification of the Goods which are required to conform with any applicable statutory, regulatory or other such requirements.
2.3 You will be responsible for supplying the Specifications and any necessary information relating to the Goods and/or Services within a sufficient time to enable Us to perform the Contract in accordance with its terms.
2.4 Prior to delivery, We shall be entitled at Our discretion to substitute for the Goods, similar goods from the same or an alternative source, or to make modifications or alterations to the Goods provided that:
2.4.1 in the case of substituted Goods, the alternative goods supplied shall be of equivalent or better quality or performance to the substituted Goods;
2.4.2 in the case of modified and altered Goods, such modifications or alterations to the Goods shall not materially affect their quality or performance.
2.5 Where We deliver Goods on behalf of third parties who have designed them to Your specification, We do not accept liability for their errors or omissions and We do not act as their agent in this respect.
2.6 Where You use a third party to instal any Goods that We have supplied to You, We do not accept responsibility for any loss or damage caused by the third party’s acts or omissions.
3. CANCELLATION OR VARIATION OF ORDERS
No contract may be cancelled, suspended or varied by You except with Our agreement in writing and on terms that You will indemnify Us in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Us as a result of a cancellation, suspension or variation. For the avoidance of doubt, any bespoke Goods or Goods ordered to Your Specifications, must be paid for in full in the event that You cancel the Order with Us.
Packaging for the Goods shall be at Our discretion, and We shall have the right to pack the Goods in such manner and with such materials and in such quantities as We think fit unless detailed packaging instructions are received from You and agreed in writing by Us prior to agreeing a price for the Goods.
5.1 Except as otherwise stated in any quotation or in Our price list, and unless otherwise agreed in writing, all prices are exclusive of delivery.
5.2 We reserve the right, by giving You notice at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to Us which is due to any factor beyond Our control, any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by You, or any delay caused by Your instructions or Your failure to give Us adequate information or instructions.
5.3 There shall be added to the price for the Goods or Services any cost of value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods or performance of the Services.
6 TERMS OF PAYMENT
6.1 Subject to any special terms agreed in writing between Us, liability for payment shall arise in respect of Goods, on delivery and in respect of Services, upon completion. We shall be entitled to invoice You for the price of the Goods and/or Services on or at any time after despatch from our premises or completion respectively, unless, in the case of Goods, these are to be collected by You or You fail to take delivery of the Goods, in which event We shall be entitled to invoice You for the price at any time after We have notified You that the Goods are ready for collection or (as the case may be) We have tendered delivery of the Goods.
6.2 When deliveries are spread over a period each consignment will be invoiced as despatched and each month's invoices will be treated as a separate account and be payable accordingly.
6.3 Unless We ask You to pay for the Goods in advance or unless We agree otherwise, You will pay the price of the Goods (less any discount agreed in writing by Us, but without any other deduction or set-off) within 30 days of the end of the month of the date of Our invoice.
6.4 Time of payment shall be of the essence. If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to Us, We shall be entitled to:
6.4.1 cancel the Contract or suspend any further deliveries or performance under the Contract or any other contract so long as the default continues; and/or
6.4.2 withdraw or cancel immediately any discount for prompt payment which has been agreed with or has been granted to You or to which You are entitled and debit Your account accordingly.
6.4.3 collect the Goods from the premises where they have been stored by You or anyone on Your behalf and You agree to give Us access to do so or to arrange with any third party that We may have access to do so.
6.5 Where you are late in payment of any of Our invoices, We shall be entitled to charge you interest at a rate of 12% until time of payment in full of all outstanding sums.
6.6 Where We provide you with credit facilities, such credit facilities shall be on terms and conditions that We agree and We shall be entitled to terminate any credit facilities in Our absolute discretion and/or to ask for any deposit or pre-payment in advance of Goods or Services being provided to You.
6.7 Where payment of any kind for Goods or Services being provided to You is made to Us through a credit card, including but not limited to payment for cash sale orders or payment due to Us under the terms of any credit facilities extended to you, this payment will be subject to a 2% surcharge.
7 DELIVERY AND COMPLETION DATES
7.1 Delivery shall take place when the Goods are unloaded at or delivered by Us or Our agent or contractor to Your Premises or other delivery location agreed between Us (“Your Premises”) except that:
7.1.1 if You collect or arrange collection of the Goods from Our premises or You nominate a carrier for the Goods, delivery shall take place when the Goods are loaded on to the collection or carrier's vehicle; or
7.1.2 if the Goods are ready to be despatched from Our premises to You and You have failed or refused to provide Us with detailed delivery instructions and/or the place for delivery has not been agreed in writing by Us the delivery shall take place when We have notified You that We are awaiting specific delivery instructions and/or that the place for delivery has not been agreed.
7.1.3 Delivery of the Services shall take place when the Services have been completed at the agreed location.
7.2 The dates for delivery of the Goods or for performance of the Services are approximate only and time is not of the essence for delivery or performance. We will use reasonable endeavours to complete delivery or performance on or before dates requested by You but will not be liable in any circumstances for the consequences of any delay in delivery or performance or failure to deliver or perform. Delivery prices are stated on the basis of one single delivery to Your agreed location, and on the basis that there are no special delivery compliances, timeslots, or other restrictions in force. We are not responsible for the offloading of goods from the delivery vehicle (ours or third party courier), it is Your responsibility unless We agree otherwise in advance. If You require offloading facilities with the delivery vehicle these can provided at an additional fee. Any alternative arrangements must be agreed with Us in writing and We shall be entitled to charge You an additional fee for this at Our prevailing rates.
7.3 You shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which We may either: -
7.3.1 effect delivery by whatever means We think most appropriate; or
7.3.2 arrange storage at Your risk and expense pending delivery; or
7.3.3 resell or otherwise dispose of the Goods without prejudice to any other rights We may have against You for breach of contract or otherwise.
7.4 You shall indemnify Us against all costs, losses and expenses suffered or incurred as a result of Your failure to accept immediate delivery.
7.5 Where the Contract provides for delivery by instalments, each instalment shall constitute a separate contract and any delay, failure or defect in any one or more instalments delivered shall not entitle You to reject or cancel delivery or performance of any further instalment of the Contract or any other order from You or to repudiate the Contract.
7.6 You agree to provide to Us with access to such facilities, utilities and equipment as may be necessary to enable Us to fulfil Our obligations to You.
8 EXAMINATION; CLAIMS; RETURN OF GOODS
8.1 Unless We agree otherwise, We do not accept the return of Goods other than in accordance with Clause 9.
8.2 You shall examine the Goods upon delivery and You shall:
8.2.1 notify Us in writing where relevant within 24 hours of the delivery (or proposed delivery) of non-delivery or short delivery;
8.2.2 notify Us in writing within three working days of delivery or receipt of any apparent damage, defect or shortage;
8.2.3 notify Us in writing within three working days of delivery or receipt of any goods despatched by Us to You in error.
8.3 Notification under Clause 8.1 shall be first made by telephone then email unless We specify otherwise.
8.4 You shall comply with the carrier’s rules regulations and requirements so, when appropriate, We may make a claim against the carrier in respect of any damage or loss in transit.
8.5 If you do not notify Us correctly under the provisions of Clause 8, subject to any claim which You may have under Clause 9, We shall be deemed conclusively to have properly performed Our obligations under the Contract.
8.6 We shall be under no obligation to accept the return of Goods except in accordance with Clauses 8.1.2, 8.1.3, 9 and 11.
8.7 Any complaint regarding any Services provided by Us must be made in writing to Us within 7 days of the completion of the Services.
9 WARRANTY: LIMIT OF RESPONSIBILITY
9.1 In respect of Goods supplied but not manufactured by Us, the warranties given by Us will be equivalent to the warranty (if any) which We received from the manufacturer or supplier of such Goods but not so as to impose a liability greater than that imposed on Us by the warranty in Clause 9.2 and the warranties given under this Clause shall in any event apply only if You have given Us written notice and satisfactory proof of any relevant defect within the applicable period specified in Clause 9.2.
9.2 We warrant that (subject to the other provisions of this Contract) for a period of 6 months from the date of delivery, or such other period as We may specify in writing, the Goods will be free from defects in workmanship or material.
9.3 We shall not be liable for a breach of the warranty in Clause 9.2:
9.3.1 Unless You have given Us and the carrier (if the defect is as a result of damage in transit) written notice of the defect, within three days of the time when You discover or ought to have discovered the defect and You show to Our satisfaction that the Goods are defective in workmanship or material and We are given a reasonable opportunity after receiving the notice of the defect to examine such Goods and You (if We ask you to ) return such Goods to Our place of business at Your cost for the examination to take place there;
9.3.2 If You make any further use of such Goods after giving such notice as set out in clause 9.3.1 above;
9.3.3 the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
9.3.4 You replace, repair or fit parts to the Goods which were not supplied by Us, or without Our written consent;
9.3.5 if the Goods have been stored, handled or applied in such a way that damage is likely to occur;
9.3.6 if You have not paid by the due date for payment for all Goods or Services supplied whether under the Contract or under any other contract between Us and You; or
9.3.7 in respect of any defect in the Goods arising from any free issue materials or any drawing, design or specification supplied by You.
9.4 Where We supply Goods to You that have been assembled by Us away from Your Premises, it is Your responsibility to ensure that You check the fittings, supports, brackets and such other items before using the Goods in the event that there has been a movement or loosening during transportation to Your Premises. To the extent permitted by law, We do not accept any liability in respect of Your failure to undertake and such checks and to remedy any such loosening or movements.
9.5 Subject as expressly provided in Clauses 9.1, 9.2 and 9.3, all warranties, clauses or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.6 Subject to Clauses 9.3 and 9.4, if any of the Goods do not conform with the warranty in Clause 9.2, We shall at Our option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate or re-perform the Services provided that, if We so request, You shall at Your expense, return the Goods or the part of such Goods which is defective to us.
9.7 If We comply with Clause 9.6 We shall have no further liability for a breach of the warranty in Clause 9.2 in respect of such Goods.
9.8 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the warranty period.
9.9 Where You ask Us for advice or guidance regarding Our products (whether bespoke, to Your specification or standard) We can not guarantee that they will be suitable for use with Your existing premises, fittings and similar. It is Your responsibility to ensure that they meet Your requirements, and We accept no liability for this.
9.10 Except for liability for death or personal injury arising from Our negligence and fraudulent misrepresentation or for any other liabilities that cannot be excluded or limited in law, Our option to repair, replace, re-perform or refund shall constitute the full extent of Our liability in respect of any loss or damage sustained by You (whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by Our negligence, Our employees or agents or arising from any other cause whatsoever) and We shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct, indirect or consequential (including, without limitation, loss of profits) suffered by You.
9.11 To the extent permitted in law, Our maximum liability under or in connection with the Contract shall be limited to the price of the Goods or Services or £100,000 whichever is the lower.
10 TITLE TO GOODS
10.1 Unless the Contract otherwise stipulates, risk of damage to or loss of the Goods shall pass to You at the time of delivery of the Goods in accordance with Clause 7 or, if You fail to take delivery of the Goods, the time when We have tendered delivery of the Goods and You should insure the Goods accordingly.
10.2 Notwithstanding that risk in the Goods shall pass to You in accordance with Clause 10.1, legal and beneficial ownership of the Goods shall remain with Us until payment in full has been received by Us:
10.2.1 for those Goods;
10.2.2 for any other goods supplied by Us;
10.2.3 of any other monies due from You to Us on any account.
10.3 Until property in the Goods passes to You under Clause 10.2 You shall:
10.3.1 be bailee of the Goods;
10.3.2 keep the Goods separately and readily identifiable as Our property.
10.4 If Goods in which property has not passed to You are mixed with or incorporated into other goods, the property in those other goods shall be held on trust for Us.
11.1 Without limiting Our other right or remedies, We may terminate the Contract with you if:
11.1.1 You commit a material breach of any clause of these Terms and Conditions and if such a breach is remediable, You fail to remedy that breach within 14 days of Us requesting You to do so; or
11.1.2 You take any step or any step or action in connection with Your entering administration, provisional liquidation or any composition or arrangement with Your creditors (other than in relation to a solvent restructuring), 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 Your assets or ceasing to carry on business; or
11.1.3 You take any step or action in connection with Your being made bankrupt, entering any composition or arrangement with Your creditors, having a receiver appointed to any of Your assets, or ceasing to carry on business; or
11.1.4 You suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of it Your business.
11.2 Termination of the Contract, howsoever arising, shall not affect any of Our or Your rights and remedies that have accrued as at termination.
11.3 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
12 DATA PROTECTION
12.1 We and You agree to comply with our respective obligations under the General Data Processing Regulation (GDPR) and Data Protection Act 2018 (and all other applicable statutes, directives, or regulations which may supplement, amend, or replace same and relate to data privacy)(“Data Protection Legislation”) in respect of any Personal Data, which we supply or receive under, or in connection with, this Contract in our respective roles as either Data Controller or Data Processor (as defined under Data Protection Legislation). Where a party is Data Controller it will ensure that it has obtained from all relevant Employees all consents which may be necessary in order for it, or the Data Processor, to lawfully process Personal Data about those Employees for the purposes of delivering the Services and Products.
12.2 Each party warrants that it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data.
12.3 Each party undertakes at any time during this Contract, and for a period of 5 years after termination, not to disclose, copy or use any Confidential Information belonging to the other party except as permitted by clause 12.4.
12.4 Each party may disclose the other party’s Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connections with this Contract as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.5 For the purposes of clauses 12.3 and 12.4, “Confidential Information” shall mean any and all information and data of a confidential or proprietary nature in whatever from and on whatever media (whether written, oral, visual, electronic, magnetic or other media) which includes: commercial, financial, business, customer, supplier, marketing, third party, technical or other information (including inventions, ideas, designs, formula, strategies, software, know-how and trade secrets); any information which at the time of disclosure is or should be regarded as confidential or proprietary having regard to the nature of the information and the circumstances of the disclosure.
12.6 We may pass information about You to Our agents and service providers to search files of credit reference agencies to help administer any accounts, services and products provided by Us now or in the future. We may share information about how You deal with Your accounts with other financial institutions, and with credit agencies to detect fraud or recover loss. When You apply for a credit account, We may check records held by credit reference agencies.
13. FORCE MAJEURE
13. A “Force Majeure Event” means any circumstances not within Our or Your reasonable control including but not limited to: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; interruption or failure of utility services.
13.1 Provided We or You have complied with clause 13.3, if We or You are prevented, hindered or delayed in or from performing any obligations under this Contract by a Force Majeure Event, the affected party (“Affected Party”) shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.2 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of 20 days, the party not affected by the Force Majeure Event may terminate this Contract by giving 20 days written notice to the Affected Party.
13.3 The Affected Party shall:
13.3.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party of the Force Majeure Event and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
13.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14. INTELLECTUAL PROPERTY
14.1 We grant you with effect from the delivery date, a non-exclusive, irrevocable, non-terminable and royalty-free licence to use the Technical Design Information, subject to the following licence conditions:
14.1.1 the licence includes the right to use and reproduce the Technical Design Information (and any designs contained therein) for any and all purposes whatsoever connected with this Contract only.
14.1.2 You shall not use the Intellectual Property Rights licensed under this clause 14 in any way that is not expressly permitted by this Contract. and not for any other purpose whatsoever.
14.2 You shall indemnify Us against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, unregistered design, design right, copyright, trademark or other industrial or intellectual property rights resulting from Our compliance with Your instructions, whether express or implied.
15. ASSIGNMENT AND SUBCONTRACTING
15.1 None of Your rights or obligations under the Contract may be assigned or transferred in whole or in part without Our prior written consent.
15.2 We shall be entitled to subcontract any work relating to the Contract.
15.3 We shall be entitled to assign Our rights under this Contract provided that We give You prior written notice.
16.1 Any notice or other communication to be given under these clauses must be in writing and may be delivered or sent by pre-paid first-class letter post
16.2 Any notice or document shall be deemed served, if delivered, at the time of delivery 48 hours after posting
The invalidity, illegality or unenforceability of any provision of this Contract in whole or in part shall not prejudice the effectiveness of the rest of this Contract or the remainder of any part of a clause affected.
No waiver by Us of any breach of the Contract by You shall be considered as a waiver of any subsequent breach of the same or any other provision.
19 THIRD PARTY RIGHTS
A person who is not party to this Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
20 LAW AND JURISDICTION
The Contract shall be governed by and construed in all respects in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English courts.
These conditions apply with effect from 1st April 2014 and supersede all previous conditions issued By Kernow Fixings Ltd.
Website Pricing Disclaimer
All prices on this website are subject to change without notice. Whilst we make every effort to provide you the most accurate, up-to-date information, occasionally, one or more items on our web site may be mis-priced. In the event a product is listed at an incorrect price due to typographical, photographic, or technical error or error in pricing information received from our suppliers, Kernow Fixings Ltd. shall have the right to refuse or cancel any orders placed for product listed at the incorrect price.
If an item's correct price is lower than our stated price, we will charge the lower amount and ship you the item.
If an item's correct price is higher than our stated price, we will cancel your order and notify you of the price error and order cancellation. You will, of course, have an opportunity to purchase the item at the correct price, if you so wish.
You can simply use your credit account or if you prefer to make your payment with the order - you can pay in the way that suits you best by debit/credit card. Please note, if you do not have an a credit account and would like to open one, we have provided an account form at the back of this catalogue for you to fill out, sign and return. Credit accounts are subject to credit checks and status. It is important when paying by card for an order either by phone or online, that the invoice address and delivery address must match the card holders registered address. Failure to provide the correct address details can delay your order being processed. All transactions are subject to our terms and conditions which can be found above.
General Corporate Email Disclaimer
This disclaimer applies to all emails sent from the kernow-how.com domain. Any views or opinions presented in the email are solely those of the author and do not necessarily represent those of the company. The email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. The message contains confidential information and is intended only for the individual named. It must not be disclosed to third parties without the express written approval of the sender. If you are not the named addressee you should not disseminate, distribute or copy the e-mail. Please notify the sender immediately by e-mail if you have received the e-mail by mistake and delete this e-mail and any attachments from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of the information is strictly prohibited. The company accepts no liability for any damage caused by any virus transmitted by this email. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses.