Mix Terms and Conditions
The Customer’s attention is drawn in particular to the provision of Clause 9
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
Business Day a day (other than a Sunday or public holiday) when banks in London are open for business
Contract the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these
terms and conditions
Customer the person or firm who purchases the Goods from the Supplier
Delivery in the case of a Delivery to the Customer, has the meaning set out in Clause 4.2.2 and in the case of a collection of the
Goods by the Customer, has the meaning set out in Clause 4.8.2
Delivery Note the delivery note accompanying the Delivery of the Goods
Force Majeure
Event
an event or circumstance beyond a party’s reasonable control, including adverse weather
Goods the goods (or any part of them) as described in the Delivery Note
Invoice the Customer’s invoice for the Goods
Order the Customer’s order for the Goods as notified to the Supplier on the phone, in person or by email
Supplier Cullimores Mix Ltd of Netherhills, Whitminster, Glos, GL2 7PD (registered in England and Wales with company number
01024888)
1.2 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.
1.3 A reference to writing or written includes emails.
2 BASIS OF CONTRACT
These Conditions apply to the purchase by the Customer from the Supplier of the Goods to the exclusion of any other, including those which are
implied by trade, custom, practice or course of dealing.
3 GOODS
3.1 This is not a sale by sample and the Goods are as described in the Delivery Note.
3.2 The Customer shall be responsible for providing the Supplier with all necessary information in order to enable the Supplier to discharge its
obligations under this Contract and shall inform the Supplier of any necessary changes to the Goods or delivery details as soon as
practicable.
4 DELIVERY
4.1 The parties will agree how and when Delivery will occur.
Delivery to the Customer’s site by the Supplier
4.2 If the Supplier is delivering the Goods to the Customer:
4.2.1 the Supplier shall deliver the Goods to a reasonably appropriate location at the address notified to the Supplier (for the
purpose of Clauses 4.2 – 4.7, Delivery Location) in the manner agreed with the Customer; and
4.2.2 delivery occurs upon the completion of the unloading of the Goods from the Supplier’s vehicle at the Customer’s site
(Delivery).
4.3 Any dates and times quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.4 The Customer shall be liable to the Supplier for any delivery costs where: (i) the Customer does not accept a delivery or the Supplier is
unable to make a delivery, including because the site access makes such delivery unsafe or in the sole opinion of the Supplier could
result in damage to the Supplier’s vehicle; and (ii) for each 30min period of additional waiting time incurred.
4.5 Save as set out in Clause 4.4, and where the Customer has any bespoke administrative requirements (in which case the Supplier
reserves the right to apply additional charges), there shall be no additional charge for Delivery.
4.6 The Customer shall be fully responsible for any damage which occurs to the Supplier’s vehicles if a vehicle is ordered off the public
highway by the Supplier in order to enable it to make a Delivery.
4.7 The Customer acknowledges that the Goods are delicate and that timing of Delivery is critical in preventing the Goods from spoiling. If the
Customer hinders Delivery in any way or fails to follow the Supplier’s instructions which results in the Goods spoiling and causing damage
to the Supplier’s vehicles, the Customer shall be liable for all losses reasonably incurred by the Supplier.
Collection by Customer
4.8 If the Customer is collecting the Goods from the Supplier’s premises (for the purpose of Clauses 4.8 – 4.9, Delivery Location):
4.8.1 the Customer shall collect the Goods from the Delivery Location at a time and in a manner agreed between the Parties; and
4.8.2 Delivery shall occur upon the completion of the loading of the Goods into the Customer’s vehicle at the Delivery Location
(Delivery).
4.9 The Customer shall comply with all health and safety notices and instructions given by the Supplier whilst at the Delivery Location and the
Supplier may, in its absolute discretion, refuse to sell to the Customer and/or ask the Customer to leave the Delivery Location if the
Customer does not adhere to its requirements.
5 QUALITY
5.1 The Supplier warrants that on delivery, the Goods shall:
5.1.1 conform with the Order and Delivery Note;
5.1.2 conform with the applicable kite standards; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 The Goods shall be deemed accepted upon counter-signature of the Delivery Note by the Customer.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranties set out in Clause 5.1 in any of the following events:
5.3.1 a defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage,
commissioning, installation, discharge, use and maintenance of the Goods or (if there are none) good trade practice
regarding the same;
5.3.2 the Customer requested an incorrect design based on the intended load bearing weight of the Goods;
5.3.3 the Supplier notifies the Customer that weather may adversely affect the Goods, but the Customer insists on Delivery
irrespective of the Supplier’s advice;
5.3.4 the Customer alters the Goods without the written consent of the Supplier; or
5.3.5 the defect arises as a result of wilful damage, negligence, incorrect storage or unusual working conditions.
5.4 Except as provided in this Clause 5 and subject to Clause 9, the Supplier shall have no liability to the Customer in respect of the Goods’
failure to comply with the warranties set out in Clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the
Contract.
6 TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on the completion of Delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receiving payment in full (in cash or cleared funds) for the Goods; and
6.2.2 the Customer using the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 notify the Supplier immediately if it becomes subject to any of the events listed in Clause 8.1; and
6.3.2 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7 PRICE AND PAYMENT
7.1 The price of the Goods shall be as agreed by the Parties at the time of the Order and, where relevant, as set out in the Delivery Note.
7.2 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to
the Supplier at the prevailing rate.
7.3 If the Customer has an account with the Supplier, payment terms shall be as per the agreed account terms notified to the Customer from
time to time. Where the Customer does not have an account, payment shall be on Delivery or as otherwise agreed in writing.
7.4 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall
pay interest on the overdue amount at the rate of 4% per annum above he Bank of England’s base rate from time to time. Such interest
shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The
Customer shall pay the interest together with the overdue amount.
7.5 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for
any deduction or withholding required by law). 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.
8 TERMINATION
8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the
Customer if:
8.1.1 the Customer commits a material breach of any term of the Contract;
8.1.2 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its
business; or
8.1.3 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to
adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid
invoices and interest.
8.3 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right
to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall
remain in full force and effect.
9 LIMITATION OF LIABILITY
9.1 Nothing in these terms and conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as
applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; and
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to Clauses 9.1 and 9.3:
9.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under
or in connection with the Contract; and
9.2.2 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
100% of the price of the Goods.
9.3 If the Supplier fails to deliver the Goods, subject to Clauses 9.1 and 9.2, its liability shall be limited to the costs and expenses incurred by
the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, 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: (a) Force
Majeure Event; (b) 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; or (c) if access to the Delivery location is deemed unsafe for the Supplier’s vehicles.
10 FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if
such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for four weeks, the party not affected
may terminate this Contract by giving 7 days’ written notice to the affected party.
11 GENERAL
11.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or
obligations under the Contract.
11.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of
its rights or obligations under the Contract without the prior written consent of the Supplier.
11.3 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises,
assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made
innocently or negligently) that is not set out in this Contract.
11.5 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any
other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of
such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the
minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or partprovision
shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the
validity and enforceability of the rest of the Contract.
11.8 No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
11.9 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject
matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.10 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute