Terms and Conditions
1.1 In these Conditions the following words shall have the following meanings:
“Buyer”: the person, firm or company who purchases Goods and/or Services from Cambrian Containers.
“Conditions”: the standard terms and conditions set out in this document and (unless the context otherwise requires) any special terms and conditions agreed in writing between Cambrian Containers and the Buyer.
“Contract”: the contract between Cambrian Containers and the Buyer for the sale and purchase of the Goods and/or supply of the Services, incorporating these Conditions.
“Goods”: any goods agreed in the Contract to be supplied to the Buyer by Cambrian Containers (including any part or parts of them)
“Cambrian Containers”: Cambrian Marketing Limited (company number 07289055) and Cambrian Mouldings Limited (company number 07289081) together trading in partnership as Cambrian Containers of 32 Mochdre Industrial Estate, Newtown, Powys SY16 4LE.
“Services”: any services including but not limited to printing, spraying or etching agreed in the Contract to be supplied to the Buyer by Cambrian Containers.
“Working Day”: A day on which the clearing banks in the City of London are open for business
2. Application of Conditions
2.1 These Conditions apply to the Contract to the exclusion of any other terms and conditions which the Buyer seeks or purports to impose or incorporate under any purchase order, confirmation of order, specification or other document or which are implied by trade, custom practice or course of dealing and the Buyer waives any right which it might have to rely on such terms or conditions.
2.2 No variation to these Conditions or any representation about the Goods and/or Services shall have effect unless expressly agreed
in writing and signed by a duly authorised representative of Cambrian Containers.
2.3 Each order from the Buyer for Goods and/or Services to be supplied by Cambrian Containers shall be deemed to be an offer by the Buyer to purchase Goods and/or Services subject only to these Conditions.
2.4 No order placed by the Buyer shall be deemed to be accepted by Cambrian Containers and Contract come into force until a written acknowledgement of order is issued by Cambrian Containers or (if earlier) Cambrian
Containers delivers the Goods to the Buyer or commences performance of the Services.
2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate. Where the Buyer supplies the artwork, the Buyer shall ensure the artwork is in all respects accurate and supplied with all relevant pantone
2.6 Any quotation is given on the basis that no contract will come
into existence until Cambrian Containers despatches an acknowledgement of order to the Buyer. Any quotation is valid
for a period of 90 days only from its date, provided that Cambrian Containers has not previously withdrawn it.
2.7 Where the Customer is a consumer (as defined in the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1999), the consumer’s statutory rights are not adversely affected by anything contained in these conditions.
2.8 Where Goods are manufactured in accordance with a specification supplied by the Buyer or marked with a logo or other similar mark supplied by the Buyer the Buyer shall indemnify Cambrian Containers against all liabilities, costs, expenses, damages and losses (including without limitation any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest and penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Cambrian Containers for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Cambrian Containers using the said specification logo or similar mark. This clause shall survive termination of the Contract.
3. Description and Suitability
3.1 The description of the Goods and/or the Services shall be set out in Cambrian Containers’ catalogue or quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by Cambrian Containers and any descriptions or illustrations contained in Cambrian Containers’ catalogues or brochures are issued or published with the sole purpose of giving an approximate idea of the Goods and/or the Services described in them. They shall not form part of the Contract.
3.3 The Buyer shall satisfy itself as to the suitability of the Goods for any purpose for which the Buyer intends to use the Goods.
3.4 Where a service such as printing, spraying or other treatment is applied to the Goods the Buyer agrees that the quantity of the Goods to be delivered by Cambrian Containers may be up to 5% more or less than the quantity ordered, to allow for wastage during the application of the Service.
4.1 Unless otherwise stated, Cambrian Containers shall deliver or arrange delivery of the Goods to the Buyer’s normal place of business or such other place agreed in writing with the Buyer and delivery shall be completed upon arrival there.
4.2 Any date specified by Cambrian Containers for delivery of the Goods and/or performance of the Services is an estimate only and time for delivery of the Goods and/or performance of the Services is not of the essence . If no date has been so specified, delivery of the Goods and/or performance of the Services will be within a reasonable time. Cambrian Containers shall not be liable for any delay in delivery of the Goods or performance of the Services that is caused by the occurrence of any of the events referred to in clause 12.1 or by the Buyer’s failure to provide Cambrian Containers with adequate delivery instructions or any other instructions which are relevant to the supply of Goods or performance of the Services.
4.3 If Cambrian Containers fails to deliver the Goods or perform the Services or is late doing so after time of delivery has been made of the essence, its liability shall be limited to the costs incurred by the Buyer in obtaining replacement goods or services of similar description and quality in the cheapest market available, less the price of the Goods or Services (as the case may be) Cambrian Containers shall have no liability for any failure to deliver the Goods or perform the Services to the extent that such failure is caused by any event referred to in clause 12.1, or by the Buyer’s failure to provide Cambrian Containers with adequate delivery instructions for the Goods or Services or any relevant instruction related to the supply of the Goods or performance of the Services. 4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Cambrian Containers is unable to deliver the Goods or perform the Services on time because the Buyer has not provided appropriate instructions, documents, licenses or authorisations, risk in the Goods will pass to the Buyer and Cambrian Containers may store them until actual delivery and the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
5.1 The quantity of any consignment of Goods as recorded by Cambrian Containers upon despatch from Cambrian Containers’ place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. In any event the Buyer shall not be entitled to reject Goods if Cambrian Containers delivers up to and including 5% more or less than the quantity of Goods ordered.
5.2 Cambrian Containers shall not be liable for any non-delivery of Goods unless written notice is given to Cambrian Containers within 3 Working Days of the date when the Goods would in the ordinary course of events have been delivered.
5.3 Any liability of Cambrian Containers for non-delivery of any Goods shall be limited to replacing those Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.4 Cambrian Containers may deliver the Goods or perform the Services 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 Buyer to cancel any other instalment.
6.1 Unless otherwise agreed in writing by Cambrian Containers the price for the Goods and/or the Services shall be the price set out in Cambrian Containers’ price list in force at the date of delivery.
6.2 Prices are subject to alteration without notice, but copies are always available on request.
6.3 The price for the Goods and/or the Services shall be exclusive of any value-added tax and all costs or charges in relation to loading, unloading, carriage and insurance of the goods which the Buyer shall pay in addition.
7.1 Cambrian Containers reserves the right to require payment in full of the price with order. Where Cambrian Containers agrees to grant credit terms to the Buyer, Cambrian Containers’ normal credit terms are payment in full of the price within 30 days of the date of Cambrian Containers’ invoice. Time of payment is of the essence.
7.2 Cambrian Containers may at its discretion and without limiting its other rights or remedies, suspend the supply of Services or delivery of Goods or terminate the Contract with immediate effect in each case by giving written notice, if the Buyer fails to pay any amount due under this Contract on the due date for payment or if the Buyer is subject to any of the events listed in clause 8.5.1 or 8.5.2 or Cambrian Containers reasonably considers that the Buyer may be so subject.
7.3 All sums payable to Cambrian Containers under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.4 The Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement or otherwise.
7.5 If the Buyer fails to pay Cambrian Containers any sum due pursuant to the Contract the Buyer will be liable to pay interest to Cambrian Containers on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgement. Cambrian Containers reserves the right to claim interest and/or compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998.
8. Risk and Ownership
8.1 The goods shall be at the risk of the Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to the Buyer until Cambrian Containers has received in full (in cash or cleared funds):
22.214.171.124 all sums payable in respect of the Goods including any interest; and
126.96.36.199 all other sums which are or which become due to Cambrian Containers from the Buyer on any account including any interest on such sums.; or
8.2.2but where the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 8.4
8.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
8.3.1 store the Goods separately to other goods of the Buyer or any third party in a way that they remain readily identifiable as Cambrian Containers’ property.
8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Cambrian Container’s behalf from the date of delivery;
8.3.4 notify Cambrian Containers immediately if it becomes subject to or is reasonably likely to become subject to any of the events listed in clause 8.5 below
8.4 Subject to clause 8.5 the Buyer may resell the Goods before ownership has passed to it solely on the condition that any sale shall be on the Buyer’s own behalf in the ordinary course of the Buyer’s business and the Buyer shall deal as the principal when making such sale.
8.5 The Buyers’ right to possession of the Goods shall terminate immediately and Cambrian Containers may require the Buyer to deliver up any Goods in its possession which have not been resold or irrevocably incorporated into another product if:
8.5.1 the Buyer has a bankruptcy order or insolvency petition made or threatened against it or makes an arrangement or composition with its creditors or (being a body corporate) convenes a meeting of creditors (except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or a resolution is passed or a petition presented for the winding up of the Buyer, or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency of the Buyer; or
8.5.2 the Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between Cambrian Containers and the Buyer, or is unable to pay its debts or the Buyer ceases to trade.
8.6 Cambrian Containers shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Cambrian Containers.
8.7 The Buyer grants Cambrian Containers, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or where the Buyer’s right to possession has terminated to recover them.
9.1 Cambrian Containers warrants (subject to the other provisions of these Conditions) that:
9.1.1 upon delivery the Goods will be of satisfactory quality;
9.1.2 the Services will be performed with reasonable care and skill.
9.2 Cambrian Containers shall not be liable for a breach of warranty in condition 9.1 unless:
9.2.1 The Buyer gives written notice of the defect to Cambrian Containers (and to the carrier if the defect is as a result of damage in transit) within 3 Working Days of the time when the Buyer discovers or ought to have discovered the defect; and
9.2.2 Cambrian Containers is given a reasonable opportunity of examining the Goods and/or alleged defective Services and the Buyer (if asked to do so by Cambrian Containers) returns the Goods to Cambrian Containers’ place of business at Cambrian Containers’ expense for the examination to take place there.
9.3 Cambrian Containers shall not be liable for a breach of warranty in condition 9.1 if:
188.8.131.52.1 the Buyer makes any further use of the Goods after giving notice of any defect; or
9.3. 9.3.2 the defect arises because the Buyer or its customer failed to follow Cambrian Containers’ written or oral instructions or good trade practice as to the storage, installation, maintenance or use of the Goods, or
9.3.3 the Buyer alters or repairs the goods or attempts to rectify the Services without the written consent of Cambrian Containers; or
9.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods and/or Services do not conform with the warranty in condition 9.1 Cambrian Containers shall at its option repair or replace such Goods (or the defective part) or rectify such Services or refund the price of such Goods and/or Services at the pro rata Contract rate (subject to the Buyer having already paid for them) and shall have no further liability for breach of or failure to comply with the warranty set out in clause in 9.1.
9.5 If Cambrian Containers so requests, the Buyer shall, at the Cambrian Containers’ expense, return the Goods or the parts of such Goods which are defective to Cambrian Containers.
10. Limitation of Liability
10.1 Subject to conditions 4, 5 and 9, the following provisions set out the entire financial liability of Cambrian Containers (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these Conditions; and
10.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of Cambrian Containers for death or personal injury caused by Cambrian Containers’ negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
10.4 Subject to conditions 10.1, 10.2 and 10.3
10.4.1 Cambrian Containers’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods and/or the Services the subject of the claim; and
10.4.2 Cambrian Containers shall not be liable to the Buyer for:
(i) loss of profit;
(ii) loss of business;
(iii) loss of goodwill and/or similar losses;
(iv) loss of anticipated savings;
(v) loss of goods;
(vi) loss of contract;
(vii) loss of use; or
(viii) any special, indirect, consequential or pure economic loss,
costs, damages, charges or expenses.
11. Designs and Tooling
11.1 Unless otherwise agreed in writing by an authorised signatory of Cambrian Containers, all designs and tooling created by Cambrian Containers or by any third party for Cambrian Containers and all copyright, design rights and other intellectual property rights in such designs and tooling shall belong to and remain with Cambrian Containers.
12. Events beyond Cambrian Containers’ control
12.1 Cambrian Containers reserves the right to defer the date of delivery of the Goods and/or performance of the Services or to cancel the Contract or to reduce the volume of Goods and/or scope of Services ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business and or performing the Contract due to circumstances beyond the reasonable control of Cambrian Containers including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock- outs, strikes or other labour disputes (whether or not relating to either party’s workforce),breakdown of plant or machinery, default of suppliers or sub-contractors restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
12.2 Cambrian Containers shall not be liable to the Buyer as a result of delay or failure to perform all or any of its obligations under the Contract as a result of any event referred to in clause 12.1.
13.1 The Buyer shall not assign the Contract or any part of it without the prior written consent of Cambrian Containers.
13.2 Cambrian Containers shall be entitled to assign or sub-contract the Contract or any part of it to any person, firm or company.
13.3 Subject to Condition 13.2, nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any of the terms of the Contract.
13.4 The Buyer shall not use Cambrian Containers’ name, logo or other intellectual property rights in advertising or publicity without Cambrian Containers’ prior written consent.
13.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.6 Failure or delay by Cambrian Containers in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.7 Any waiver by Cambrian Containers of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.8 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party as its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
13.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.