Terms & Conditions of Business ancillary to the Cake Boxes Direct Limited Supply Agreement
(1) The Seller sells materials used for the packaging of products including inter alia patisserie products from the Supplier (defined below)
(2) The Supplier supplies the Goods (defined below) to the Seller and the Buyer is willing to purchase these Goods from the Seller, all subject to the provisions of this Agreement.
NOW IT IS AGREED as follows:
In this Agreement, the following words shall have the following meanings:
‘the Seller’ is the party referred to in Section A in the Schedule (defined below) and is a company incorporated in England and Wales under company number 06834243 and whose registered office is at 40-42 High Street Maldon Essex CM9 5PN
‘the Buyer is the party referred to in Section B in the Schedule (defined below) and includes any successor company or body to whom the Buyer’s business shall be transferred or by who it is acquired and includes any name under which the Buyer trades,
‘the Schedule’ is the schedule attached to and/or provided ancillary to these Terms and Conditions of Business forming part of this Agreement
‘Buyer’s Provisions’ has the meaning given in Clause 4.1
‘Goods’ means those set out in Section E in the Schedule.
‘the Total Quantity’ is the total quantity of the Goods ordered and is set out in Section E in the Schedule
‘Quantity’ is the number of units to be delivered on each of the Delivery Dates set out in the Schedule
‘Delivery Dates’ means the dates set out in Section G in the Schedule
‘Price’ means the amounts as stated in Section I in the Schedule
‘Total Price’ is the sum of the Price, the Manufacturing Costs and the Delivery Costs
‘Conditions’ has the meaning given in Clause 14.4.
‘the Parties’ means the Seller and the Buyer
‘the Supplier’ is any party currently manufacturing and supplying the Goods at the direction of, and to, the Seller
‘Manufacturing Costs’ means any additional costs incurred by the Seller in obtaining the Goods from the Supplier
‘Delivery Costs’ means any costs incurred by the Seller in delivering the Goods to the Buyer
‘Working Days’ means Monday to Friday, bank and public holidays excluded
‘Terms and Conditions’ means the terms and conditions of business as more particularly set out herein and Section M of the Schedule or as varied from time to time as agreed between the parties in writing
The Buyer orders, and the Seller agrees to sell, the Total Quantity of the Goods at the Total Price for delivery on the Delivery Dates set out overleaf.
3 Terms and Conditions of Business
The Buyer agrees that these Terms and Conditions of Business will be incorporated into any future order made with the Seller whether set out in a form of the Schedule herein defined or not and these Terms and Conditions shall be incorporated into and apply in respect of any such order unless the Seller notifies the Buyer of any change to the Terms and Conditions prior to the order being accepted by the Seller.
Please note if you have any discrepancies with your order – refunds or exchanges will only be made 3 days from receipt of goods.
4 Conditions applicable
4.1 The express provisions of this Agreement shall apply to the sale of the Goods by the Seller to the Buyer. Any provisions not set out in this Agreement, including those of the Buyer which the Buyer applies or purports to apply, shall not be the terms and conditions concerning the sale of the Goods by the Seller to the Buyer, (however such provisions are introduced), including but not limited to provisions included on purchase order(s), confirmations of order or similar documents or other communication (‘Buyer’s Provisions’). For the avoidance of doubt, the Buyer acknowledges and agrees that the Seller shall not be bound by any of the Buyer’s Provisions.
4.2 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of this Agreement.
4.3 Any variation to the provisions of this Agreement (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by the Seller.
The Buyer acknowledges and agrees that any description which is given or applied to the Goods:
5.1 is only for the purpose of identifying the Goods; and
5.2 shall not make this Agreement a sale by description; and
5.3 is not relied on by the Buyer when entering into this Agreement.
The Buyer acknowledges and agrees that where a sample of the Goods has been shown and/or inspected by the Buyer:
6.1 the sole purpose of so doing was to enable the Buyer to judge the quality of the bulk; and
6.2 does not constitute a sale by sample.
7.1 The Buyer shall pay the Total Price for the Goods in the manner set out in Clause 8 below
7.2 Unless otherwise stated in the Schedule all prices and payments are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Buyer.
8.1 The Total Price will be apportioned equally between each of the Delivery Dates stated overleaf
8.2 The Seller shall invoice the Buyer on each of the Delivery Dates at the address specified in Section D of the Schedule for the proportion calculated in accordance with Clause 8.1 above.
8.3 The Buyer shall pay the Total Price as stated on the invoice which shall be charged in accordance with this Agreement and where there is a conflict between any price then this Agreement shall prevail
8.4 Payment by the Buyer to the Seller for the Goods delivered on each of the Delivery Dates shall be made within 20 Workings Days* after the date of invoice. approved trade customers only 8.5 The Buyer will at all times be liable for the Total Price (and any other sums due under this agreement) less any payments which have been received by the Seller 8.6 If payment is not received within 20 Working Days after the invoice is issued, the Seller shall be entitled: *approved trade customers only
8.6.1 to charge interest on the outstanding amount at the rate of 8% per annum above the base lending rate of Barclays Bank plc from time to time in force, accruing daily which the Buyer acknowledges to be fair interest; and
8.6.2 to require that the Buyer make a payment in advance of any delivery of Goods not yet made; and
8.6.3 not to make any further deliveries and the Seller will not be liable to the Buyer for any consequential loss or damage arising from this
9.1 The Seller shall deliver the Goods in the Quantity set out in Section E in the Schedule to the address stated in Section G in the Schedule on each of the Delivery Dates.
9.2 For the avoidance of doubt, each of the Delivery Dates is no more than an estimate, and time shall not be of the essence.
On each of the Delivery Dates, or the actual date of delivery if different, the risk in the Quantity of the Goods delivered on that date shall pass to the Buyer.
The property in the Quantity of the Goods shall not pass to the Buyer until the Seller has received the proportion of the Total Price calculated in accordance with this agreement (and any other sums that are due or owing to the Seller under this Agreement) in full, whether or not delivery has been made.
12 Acknowledgment of examination
The Buyer acknowledges and agrees:
12.1 the Seller has given the Buyer a reasonable opportunity to inspect the Goods;
12.2 that the Buyer has inspected the Goods;
12.3 that the Buyer has satisfied himself as to the condition of the Goods;
12.4 that the Seller has not given any warranty or condition as to the quality or fitness for any purpose of the Goods;
12.5 that all conditions or warranties, express or implied (whether by statute or otherwise) are expressly excluded;
12.6 that delivery of the Goods to the Buyer shall be conclusive evidence that the Buyer has examined the Goods and that the Goods are in conformity with the contract description, in good order and condition, of satisfactory quality and fit for any purpose to which they may be required.
13.1 The Seller will, at its option, either make good by repair or the supply of a replacement, defects which, under proper use, appear in the Goods within a period of one month after the Goods have been delivered, provided that:
(1) the Buyer notifies the Seller in writing of the claimed defects immediately on their appearance; and
(2) the Seller is satisfied that the defects arise solely from faulty design (other than a design made, furnished or specified by the Buyer for which the Seller disclaims responsibility), materials or workmanship; and
(3) the Goods claimed to be defective are returned to the Seller at the expense of the Buyer.
13.2 The repaired or replacement Goods will be delivered to the Buyer to the original place of delivery, but otherwise subject to the provisions of this Agreement.
13.3 As an alternative to Clause 13.1, the Seller shall be, in its absolute discretion, entitled to return a proportion of the Total Price to the Buyer if the Buyer has already paid part of the Total Price when the claimed defect is notified by the Buyer to the Seller.
13.4 The remedy provided in this Clause 13 is without prejudice to the other provisions of this Agreement, including, without limitation, Clause 14 below.
14.1 The Seller shall not incur or accept any liability concerning any representation made by the Seller (or made on the Seller’s behalf) to the Buyer (or any person acting on behalf of the Buyer) prior to the making of this Agreement where such representation was made or given in relation to the Conditions;
14.2 The Seller shall not accept any liability to the Buyer concerning any express term or provision of this Agreement where such a term relates to the Conditions;
14.3 All terms, conditions or warranties implied by statutory or common law relating to the Conditions are excluded from the Agreement to the fullest extent permitted by law;
14.4 The ‘Conditions’ shall mean:
14.4.1 the correspondence of the Goods with any description; and/or
14.4.2 the quality of the Goods; and/or
14.4.3 the fitness of the Goods for any purpose(s) whatsoever (whether made known to the Seller or not).
Without prejudice to any other right or remedy it might have, the Seller or the Buyer may immediately terminate this Agreement at any time by notice in writing to the other party:
15.1 if the Seller or Buyer is in breach of this Agreement and the breach is not remedied within 28 Working Days of the Seller or Buyer receiving written notice specifying the breach and requiring it to be remedied, or
15.2 if the Seller or Buyer becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Seller or Buyer (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Seller’s or Buyer’s assets or business, or if the Seller or Buyer makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
16.1 Force majeure
Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
Subject to the following sentence and Clause 3 (above), neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party. A Party may, however, assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
16.4 Entire agreement
This Agreement contains the whole agreement between the parties and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject-matter. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
No failure or delay by the Seller in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
16.6 Agency, partnership etc
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
16.7 Further assurance
Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
In this Agreement unless the context otherwise requires:
16.10.1 words importing any gender include every gender;
16.10.2 words importing the singular number include the plural number and vice versa;
16.10.3 words importing persons include firms, companies and corporations and vice versa;
16.10.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
16.10.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
16.10.6 any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
16.10.7 the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
16.10.8 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
16.10.9 where the word ‘including’ is used in this Agreement, it shall be understood as meaning ‘including without limitation’.
16.11.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or air mail, or by facsimile or e-mail (confirmed by first class mail or air mail), to the address of the relevant Party set out at the head of this Agreement, or to the relevant facsimile number set out herein, or such other address or facsimile number as that Party may from time to time notify to the other Party in accordance with this clause.
16.11.2 Notices sent as above shall be deemed to have been received three working days after the day of posting (in the case of inland first class mail), or seven working days after the date of posting (in the case of air mail), or on the next working day after transmission (in the case of facsimile messages, but only if a transmission report is generated by the sender’s facsimile machine recording a message from the recipient’s facsimile machine, confirming that the facsimile was sent to the number indicated above and confirming that all pages were successfully transmitted).
16.11.3 In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
16.12 Law and jurisdiction
The validity, construction and performance of this Agreement shall be governed by English law and it is agreed that the Court of jurisdiction with regard to any dispute arising from this Agreement shall be Chelmsford County Court: it being agreed that this is the Court of greatest convenience to the Seller.
16.13 Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
16.14 Returns Policy
We automatically accept returns if the goods are faulty, for a full refund within 3 days of receipt of order.
If you ordered the wrong goods and advise us within 3 days of receipt of goods we will consider a refund/exchange at our discretion. The package should be unopened and in a “as new” re-saleable condition. It is advisable to use a recorded delivery service or obtain a proof of posting at the post office in the unlikely event the goods are lost in transit.
We regret we cannot refund mailing costs incurred in returning unwanted goods.
Goods should be returned to:
Cake Boxes Direct Ltd
If your goods are damaged in transit Cakeboxesdirect.com will replace the item free of charge. We may ask for proof of the damage (photo) so we can proceed with a compensation claim against the courier.
Customer Services Contact Information
Tel: 01245 471 115
8 Chelmerton Avenue, Chelmsford, Essex. CM2 9RE
9.00am – 5.30pm GMT – Monday to Thursday.
9.00am – 4.30pm Friday (CLOSED WEEKENDS)