TERMS & CONDITIONS OF SALE CAMBRIDGE COMMODITIES LIMITED
“Acceptance of Order” refers to the acceptance of an order in writing (including via a sales confirmation) by the Seller.
“Acknowledgement of Order” refers to the acknowledgement of an order in writing by the Seller.
“Business Day” refers to a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Buyer” refers to the individual firm or company to whom a quotation is addressed or whose order is accepted by the Seller.
“Contract” refers to a Purchase Order from the Buyer which is accepted by the Seller together with these terms and conditions.
“Ex-Stock Goods” refers to goods which the Seller already has in stock and which are ready for delivery.
“Goods” refers to the goods (or any part of them) set out in an accepted Purchase Order.
“Purchase Order” refers to the relevant order form issued by the Buyer to the Seller.
“Seller” refers to Cambridge Commodities Ltd (03590758) whose registered office is 203 Lancaster Way Business Park, Ely, Cambridgeshire, CB6 3NX.
“Services” refers to the services (or any part of them) set out in an accepted Purchase Order.
“Specification” refers to any specification for the Goods and/or Services submitted by the Buyer and agreed by the Seller.
All references to prices, Goods and Services contained in these conditions shall be taken to mean the prices, goods and services detailed in the Purchase Order as subsequently agreed or amended by the Seller’s Acceptance of Order.
Application of Conditions
1(a) These terms and conditions apply to the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No other conditions are incorporated or implied into any Contract between the Buyer and the Seller unless expressly accepted in writing in advance by the Seller.
(b) The Purchase Order constitutes an offer by the Buyer to purchase the Goods in accordance with these terms and conditions. The Buyer is responsible for ensuring that the terms of the Purchase Order and any applicable Specification is complete and accurate. The Seller will issue a written Acknowledgement of Order, and the Buyer and the Seller shall then take the necessary steps to agree the Specification and the quantities or volumes of the Goods or Services to be delivered, and the price.
(c) The Purchase Order shall only be deemed to be accepted and a contract formed when the Seller issues a written Acceptance of Order at which point and on which date the Contract shall come into existence.
(d) Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
(e) No online Purchase Orders will be accepted by the Seller.
(f) This Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
2. (a) Time for delivery of the Goods and completion of the Services will be as stated in the Purchase Order as agreed or amended by the Acceptance of Order and is given as accurately as possible but is not guaranteed. Except where otherwise agreed, the Seller shall deliver to the Buyer’s premises stated in the Buyer’s Purchase Order. The Seller reserves the right to refuse to deliver to the Buyer’s premises stated in the Buyer’s Purchase Order and in the event of such refusal the Buyer and the Seller will take such necessary steps to agree an alternative delivery location. The Seller will not issue an Acceptance of Order until such alternative delivery location is agreed between the Parties. Subject to clause 2(g) delivery shall be in accordance with Incoterm DDP.
(b) Any dates quoted for delivery or installation of the Goods are approximate only, and the time of delivery is not of the essence. The Buyer shall have no right to cancel the Contract for failure to meet any delivery or completion time stated. All deliveries will be accompanied by a delivery note which states the date of the Purchase Order, any relevant reference numbers, the type and quantity of the Goods and or Services delivered and any specific instructions relating to the Goods.
(c)The Buyer may alternatively agree to collect the Goods from the Seller’s premises or such other location as advised by the Seller prior to delivery within 3 Business Days of the Seller notifying the Buyer that the Goods are ready to collect.
(d) The Seller reserves the right to deliver less or more than the quantity of Goods ordered by up to 5%, such quantities to be determined by weight, and the Buyer shall pay for the quantity actually delivered. Measurements of volume or weight are also subject to variation as a result of normal manufacturing or packing processes and the Buyer must accept such variations up to 5% of the stated measurement with no adjustment in the price for such variations.
(e) Failure or delay by the Buyer to take delivery of or collect any one or more instalments of Goods delivered in accordance with the Contract shall entitle the Seller to terminate the Contract either in whole or part. Except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with any of its obligations under the Contract, delivery of the Goods shall be deemed to have been completed on the day when they arrived at the agreed location. The Seller shall store the Goods until physical delivery or collection takes place and the Buyer shall be responsible for all related costs and expenses (including insurance).
(f) Liability for damage to the Goods passes on delivery or collection of the Goods by the Buyer at which time risk in the Goods shall be transferred to the Buyer. Where the Seller is notified of any damage to the Goods whilst in transit, the Seller shall either repair or replace the Goods at its sole discretion.
(g) If the Buyer does not promptly unload the delivery vehicle used to deliver the Goods to the Buyer, the Buyer shall indemnify the Seller against any liability whatsoever, including, but not limited to, a liability to pay demurrage or similar payments owed to the owner/operator of the delivery vehicle in respect of the consequent delay.
Price and Payment
3. (a) Subject to condition 3(b), the price for the Services or each delivery of Goods will be as detailed in the relevant Purchase Order, as amended by the relevant Acceptance of Order. Prices within the Acceptance of Order will be valid for 14 days.
(b) Where Goods are delivered by instalments or the Services performed in stages the Seller may invoice each instalment or stage separately and the Buyer shall pay such invoice within 28 days from the date of the invoice in accordance with these conditions. Where instalments are due to be delivered six months or more after the date of the Acceptance of Order, the Seller shall be entitled to increase the price of the Goods every six months after the date of the Acceptance of Order for any reason The Seller may also increase the price of the Goods more frequently if the Seller (in its sole discretion) considers the same to be justified by any material increase in the prices of raw materials used by the Seller or other overhead costs incurred by the Seller in the supply of the Goods.
(c) All prices (which unless otherwise specifically stated are exclusive of VAT and any other applicable taxes, including hydrocarbon oil duty, where applicable, and do not include package charges) are net of taxes and are not subject to any discount. Time of payment is of the essence. Unless an earlier date is specified by the Seller, payment is due and shall be made in full to the Seller’s bank account nominated in writing by the Seller within 28 days from the date of the invoice supplied by the Seller to the Buyer after delivery of the Goods and/or Services, and the Seller has total discretion as to whether there will be any set-off or deduction. Payment shall be made without any deduction or withholding by the Buyer except where required by law and the Buyer is not entitled to assert any credit, set-off or counterclaim against the Seller.
(d) Interest at the rate of 4% per annum above Lloyds T S B Bank Plc base rate from time to time in force shall be chargeable on the entire sum outstanding where payment is not made in accordance with condition 3(c). 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 Buyer shall pay the interest together with the overdue amount. Where the Buyer defaults in payment, the Seller shall be entitled to suspend any or all further deliveries of Goods and the performance of Services under the Contract and under any other Contract between the Seller and the Buyer. If this clause 3(d) becomes unenforceable for any reason the Seller reserves the right to claim under the Late Payment of Commercial Debts (Interest) Act 1988.
(e) The Seller has the right to issue a supplementary invoice in respect of any increase in tax or duty between the date of dispatch and the date of delivery for which the Seller may be liable to the appropriate authorities.
(f) No disputes arising under the Contract or delays (other than delays acknowledged by the Seller in writing) shall interfere with prompt payment by the Buyer.
Payment for Containers
4. The Seller shall be entitled to charge the Buyer for crates, drums, boxes, cases, cardboard or other types of packaging where such packaging is used for transportation of the Goods to the Buyer. Where the Seller has indicated to the Buyer that such packaging is returnable to the Seller, the Buyer shall return them to the Seller in good condition within two months of delivery, carriage paid by the Buyer, and the Seller will credit the Buyer for such returned packaging in the next account. All returnable packages which are not returned to Seller in accordance with this provision, not complete or in good condition, and which have not previously been charged for, will be invoiced at the standard rate, payment of such invoice being due in accordance with condition 3(c).
5. The Seller reserves the right, at any time, to withhold credit facilities from or to limit the amount or period of credit it will grant to Buyer.
6. (a) Except as otherwise provided in these conditions, section 12 of the Sale of Goods Act 1979 is implied into the Contract and all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
(b) The Goods supplied by the Seller as at the date of delivery and for 6 months from the date of delivery shall be in accordance with the Specification and shall be of satisfactory quality but are not tested or sold as fit for any particular purpose unless specifically agreed in writing by the Seller. The Services shall also conform to the Specification and be carried out with all reasonable care and skill.
(c) The Buyer must give the Seller notice in writing six months from the date of delivery within a reasonable time of discovery that some or all of the Goods and/or Services do not comply with the Specification. The Seller must be given a reasonable opportunity to examine such Goods and, if requested by the Seller, the Buyer must return such Goods to the Seller’s place of business at the Seller’s cost. If the condition of the Goods or Services is such as might or would (subject to these conditions) entitle the Buyer to claim damages, to repudiate the Contract or to reject the Goods or Services the Buyer must first ask the Seller to repair the Goods (if possible) or supply satisfactory substitute Goods or Services and the Seller shall then be entitled at its option to repair or supply satisfactory substitute Goods or Services free of cost and within a reasonable time or to repay the price of the Goods or Services in respect of which the complaint is made.
(d) The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 6(b) in any of the following events:
(i) the Buyer makes any further use of such Goods after giving notice in accordance with clause 6(c);
(ii) the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are no such instructions) good trade practice regarding the same;
(iii) the Buyer alters or repairs such Goods without the written consent of the Seller;
(iv) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(v) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
(e) If the Seller does so repair or supply satisfactory substitute Goods or Services or effect repayment under condition 6(c), the Buyer shall be bound to accept such repaired or substituted Goods or Services provided that such Goods or Services satisfy the warranty provided in clause 6(b) or repayment and the Seller shall be under no further liability in respect of any loss or damage of whatever nature arising in relation to those Goods or Services. Such replacement Goods or Services shall be subject to the terms and conditions within this Contract. Except as provided in this clause 6 the Seller shall have no liability to the Buyer in respect of the Goods and/or Services failure to comply with the warranty provided in clause 6(b).
7. In addition, the Buyer agrees to comply with all of its obligations under the REACH Regulations. In particular, but without limitation, the Buyer shall provide, on a timely basis, to the Seller all relevant new information on hazardous properties of the products. The Buyer shall comply with any safety information on the products supplied to it and ensure that their customers are provided with all the information required to use their products safely. The Buyer shall indemnify the Seller for all losses, costs or other claims arising from Buyer’s failure to comply with any or all of its obligations under the REACH Regulations howsoever arising.
8. (a) Nothing contained in these Conditions shall limit or restrict the Seller’s liability for death or personal injury caused as a result of the Seller’s negligence, nor does the Seller limit or restrict its liability for fraud or fraudulent misrepresentation, its liability for breach of the terms implied by section 12 of the Sale of Goods Act 1979 or its liability for defective products under the Consumer Protection Act 1987.
(b) The Seller or the Seller’s manufacturers or suppliers provide written instructions and/or advice to the Buyer for the safe use of the Seller’s Goods and containers (such as crates, drums, boxes, cases or carboys) and other types of packaging (further copies available on request). The Seller accepts no liability whatever for any losses, costs or other claims caused where the Buyer uses its own containers or caused as a result of the Buyer’s failure to use the Sellers’ Goods, containers or other packaging in accordance with the written safety instructions and/or advice.
(c) Where the Seller delivers Goods and containers/packaging to the Buyer, the point of delivery will be the delivery vehicle’s side and the Seller accepts no liability whatever for any losses, costs or other claims in connection with the transfer of the Goods and containers/ packaging from the vehicle side to the Buyer’s storage location.
(d) Where the Seller delivers the Goods to the Buyer, the Seller ensures that all packaging in the form of crates, drums, boxes, carboys etc are suitable to protect the Goods from damage during delivery. The Seller can accept no liability for any loss or damage caused where such packaging is used for the further transportation of the Goods or other unconnected goods and the Buyer must satisfy himself that the Goods are safely packaged for such transportation.
(e) Where the Buyer collects the Goods from the Seller, although the Seller may inspect any collection vehicle used by the Buyer, the Seller shall not be responsible for any losses caused or claims made to the Buyer as a result of the unsuitability/inappropriateness of the vehicle in any respect whatsoever.
(f) Unless the Seller has specifically confirmed to the Buyer that the Goods are suitable to be mixed with any other goods, the Seller accepts no liability for admixture of the Goods with any other goods and it shall be the Buyer’s sole and entire responsibility to ensure that the products concerned and the containers to be used are entirely suitable for such admixture and/or for transfer of such.
(g) The Seller's maximum aggregate liability under or in connection with the Contract, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed 150 per cent of the price of the Goods or Services provided (or to be provided) under the Contract.
(h) In no circumstances shall the Seller be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for any loss (whether direct or indirect) of profits, goodwill or business opportunity or for any indirect, special or consequential loss (whether or not reasonably foreseeable and even if the Seller had been advised of the possibility of the Buyer incurring the same) which arises out of or in connection with the Contract.
9. (a) All trade marks, registered or unregistered design rights, copyrights, confidential information such as colour schemes, knowhow and other intellectual property rights of any nature (“Intellectual Property”) in all Goods or Services supplied by the Seller are owned by the Seller and/or its suppliers. The Seller reserves the right at any time to require the Buyer immediately to discontinue the use in any manner whatsoever any such trade marks or other Intellectual Property.
(b)The Seller owns the exclusive right to all Intellectual property, for any formulation, that the Seller has formulated on behalf of the Buyer regardless of which party pays for the cost for formulation and the Buyer shall promptly take any necessary steps to assign to the Seller such Intellectual Property rights for any formulation. Formulation applies to any blend, flavouring system, capsule, tablet or any other unique arrangement of ingredients/materials that the Seller has developed.
(c) The Seller allows the Buyer to use their Intellectual Property when buying a formulation from the Seller, however the Seller reserves the right to withdraw access to the formulation and all Intellectual Property with regards to the formulation at Seller’s discretion.
(d) The Seller is under no obligation to sell the Intellectual Property, or rights of any formulation to the Buyer, however should the Seller wish to sell the rights to a formulation the cost of the Intellectual Property will be calculated by Seller at the time of request. With regards to a formulation whereby the Buyer has paid for the costs of formulating, the Buyer will get first option to buy the Intellectual Property of the formulation.
(e) The Seller shall own and retain all rights, title and interest in and to all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trade marks, know-how, specifications, notes, designs, inventions, information or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made in connection with the Services or Goods at any discussions or meetings with the Buyer or its representatives on the Seller’s premises including any and all Intellectual Property Rights therein (collectively the “Work Product”).
(f) The Buyer shall promptly execute all documentation and take all actions necessary or reasonably requested by the Seller to document, obtain, maintain, perfect or assign such rights in and to the Work Product to the Seller. All such Work Product will be deemed to be confidential, proprietary and trade secret information of the Seller and the Buyer will not disclose the Work Product or any information relating to the Work Product to any third parties and such Work Product and information relating to it will be will be subject to the confidentiality obligations under clause 10.
10. The Buyer shall not, without the Seller’s consent, disclose or make use of information contained in any Specification of Goods or formulations of the Seller, or any other information which the Seller expressly makes known to the Buyer is of a confidential nature or such information which can reasonably be implied to be of a confidential nature.
Reservation of Title
11. (a) Title to the Goods shall only pass to the Buyer if the Buyer has paid to the Seller all sums (including any default interest) due from it to the Seller under this Contract and under all other contracts between the Seller and the Buyer (including any sums due under contracts made after this Contract) whether or not the same are immediately payable.
(b) The Seller may recover Goods in respect of which title has not passed to the Buyer at any time and the Buyer irrevocably licences the Seller, its officers, employees and agents to enter upon any premises of the Buyer, with or without vehicles, for the purpose either of satisfying itself that Condition 11 (c) below is being complied with by the Buyer or of recovering any Goods in respect of which title has not passed to the Buyer.
(c) Until title to the Goods has passed to the Buyer under these conditions it shall possess the Goods as fiduciary agent and bailee of the Seller. The Buyer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Seller. The Buyer shall store the Goods in a satisfactory condition and keep them insured against all risks for their full price from the date of delivery. During such time as the Buyer possesses the Goods with the Seller's consent, the Buyer may in the normal course of business sell or hire the Goods as principal but without committing the Seller to any liability to the person dealing with the Buyer. Each paragraph or sub-paragraph of this condition is separate, severable and distinct.
Ex Stock Goods
12. Ex-Stock Goods are offered subject to the same terms and conditions not having been sold elsewhere prior to receipt of unqualified acceptance of the Seller’s quotation.
13. No variation to any Contract shall have effect unless signed in writing on behalf of the Seller by an officer of the Seller.
14. The Contract is between the Seller and the Buyer as principal and is not assignable without the consent of the Seller. The Seller 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
15. The Seller shall be entitled immediately to terminate any Contract between it and the Buyer by written notice if the Buyer fails to pay any invoice in accordance with these conditions, where the control of the Buyer changes during the period of the Contract or where the Buyer commits any continuing or material breach of these conditions of sale or makes any composition with its creditors or suffers any distress or execution to be levied upon its assets or is wound up either compulsorily or voluntarily or suffers a receiver of any of its assets to be appointed or otherwise ceases or threatens to cease to carry on business. Clauses 3, 4, 7, 8, 9, 10, 17, 19, 21 and 22 shall survive termination of this Contract.
16. The Seller shall have the right to cancel or delay performance of the Services or deliveries of the Goods if it is prevented from or hindered in or delayed in manufacturing or delivering the Goods or Services or any part thereof through any circumstances beyond its reasonable control, including but not limited to war, riot, government requisitions of any kind, suspension or loss of means of transport, strikes, lock outs, labour disputes, fire, explosion, flood, accident, failure of any third party to supply the Seller, breakdown of machinery or anything directly or indirectly interfering with the raw materials (including but not limited to the price or supply of raw materials) or the manufacture, supply, shipment, arrival or delivery of the Goods. During any such period of cancellation, the Buyer shall have the right to purchase elsewhere at his own risk and cost such quantities of the Goods or Services as may be necessary.
Rights of Third Parties
17. A person who is not a party to the Contract has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18.(a)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, or sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18(a); 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 fax or e-mail, one Business Day after transmission provided no error report is received by the sender.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
19. 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.
20. (a) 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.
(b) 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.
21. 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.