In these Conditions the following words shall have the following meanings:
- "Charges" means the charges for the supply of the Goods and the Installation Services, as specified in the Quotation.
"Cactus Water Systems" means Kambara Limited (Company No. 06491204) whose registered office is at Unit 1, Elphicks Cottages, Spelmonden Road, Horsmonden, Tonbridge, Kent TN12 8EL of which "Cactus Water Systems" is a trading name.
"Conditions" means these standard terms and conditions and any specific terms in the Quotation.
"Contract" means the contract between you and Cactus Water Systems for the supply of the Goods.
"Goods" means any goods agreed in the Contract to be supplied to you by Cactus Water Systems.
"Installation Services" means the installation services to be provided to you by Cactus Water Systems as set out in the Quotation.
"Quotation" means the, quotation, order form or estimate accompanying these Conditions and as accepted by Cactus Water Systems.
"You" means the customer of Cactus Water Systems with whom the Contract is made.
2. Application of conditions and supply of Goods
- 2.1 Your acceptance of a quotation for Goods or your order for any Goods constitutes an offer by you to purchase the Goods on these Conditions. No offer placed by you shall be accepted by Cactus Water Systems other than:
2.1.1 by a written acknowledgement by Cactus Water Systems; or
2.1.2 (if earlier) by Cactus Water Systems supplying the Goods,
when a contract for the supply and purchase of the Goods on these Conditions will be established. These Conditions shall apply to and be incorporated into the Contract to the exclusion of all other terms and conditions.
2.2 Any quotation is given on the basis that no Contract shall come into existence except in accordance with condition 2.1. Any quotation is valid for a period of 30 days from its date, provided that Cactus Water Systems has not previously withdrawn it.
2.3 You shall ensure that the terms of your order and any applicable specification are complete and accurate.
3. Description and quality
- 3.1 The description of the Goods shall be as set out in Cactus Water Systems Quotation or acknowledgement of order.
3.2 Cactus Water Systems may change or substitute the Goods to goods of a similar standard or better, in order to comply with any safety or statutory requirements, or as a result of an inability to obtain the Goods, provided that such changes do not materially affect the nature of the supply.
3.3 All advertising issued by Cactus Water Systems and any descriptions or illustrations contained in its catalogues or on its website are published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract.
3.4 Where Cactus Water Systems is not the manufacturer of the Goods, it shall endeavour to transfer to you the benefit of any warranty or guarantee in respect of the Goods.
3.5 Cactus Water Systems warrants that (subject to the other provisions of these Conditions) on delivery the Goods shall:
3.5.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
3.5.2 be reasonably fit for the purpose for which the Goods are commonly supplied.
3.6 Cactus Water Systems shall not be liable for breach of any of the warranties in condition 3.5 unless you give written notice of any defect to Cactus Water Systems within 7 days of the time when you discover the defect, or ought to have discovered the defect, and Cactus Water Systems has been given a reasonable opportunity after receiving such notice to examine the Goods.
3.7 Cactus Water Systems shall not be liable for a breach of any of the warranties in condition 3.5 if you make any further use of the Goods after giving such notice to Cactus Water Systems of any defect, or, the defect arises because of your failure to follow instructions as to the storage, installation, use or maintenance of the Goods or, you alter or repair the Goods without the written consent of Cactus Water Systems.
- 4.1 Cactus Water Systems shall use reasonable endeavours to supply and deliver the Goods to you in accordance with the Quotation. Any dates specified by Cactus Water Systems for delivery or installation of the Goods are estimates only, and time shall not be of the essence in this regard.
4.2 If for any reason you fail to accept delivery of any Goods when they are ready for delivery, or Cactus Water Systems is unable to deliver the Goods on time because you have not provided appropriate instructions or authorisations, risk in the Goods shall pass to you and the Goods shall be deemed to have been delivered. Cactus Water Systems may store the Goods until physical delivery is made, whereupon you shall be liable for all related costs and expenses in respect of such storage together with all associated costs of effecting delivery.
5. Risk and ownership
- 5.1 Risk in the Goods shall pass to you on the date upon which the Goods are delivered to you and you are therefore responsible for insuring the Goods from this date.
5.2 Ownership of the Goods shall not pass to you until Cactus Water Systems has received payment (in cleared funds) of all sums due or owing to Cactus Water Systems from you at any time.
5.3 Until ownership of the Goods has passed to you, you agree to hold the Goods on Cactus Water Systems' behalf and to store them in such a way so that they remain readily identifiable as belonging to Cactus Water Systems. Cactus Water Systems shall be entitled to recover payment from you in respect of the Goods even though ownership of the Goods will not have passed to you.
5.4 You grant Cactus Water Systems its agents and employees an irrevocable licence at any time to enter any premises where the Goods are stored or installed in order for Cactus Water Systems to inspect or recover them.
6. Your obligations
- 6.1 You shall:
6.1.1 co-operate with Cactus Water Systems in all matters relating to the supply of the Goods and the Installation Services;
6.1.2 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the supply and use of the Goods;
6.1.3 permit Cactus Water Systems, its employees and agents to carry out any survey at such reasonable times as Cactus Water Systems may specify and agree with you;
6.1.4 carry out any preparation works that Cactus Water Systems deems necessary and / or that are agreed between you and Cactus Water Systems, to allow the Goods to be supplied and the Installation Services to be carried out; and
6.1.5 make available to Cactus Water Systems, its employees and agents the facilities, resources and working space as may be required to enable the Installation Services to be performed.
6.2 If Cactus Water Systems' performance of any of its obligations under the Contract is prevented or delayed by any act or omission of you, your agents or employees, Cactus Water Systems shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
6.3 You shall be liable to pay to Cactus Water Systems, on demand, all reasonable costs, charges or losses sustained or incurred by Cactus Water Systems (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under the Contract.
7. Charges and payment
- 7.1 You shall pay to Cactus Water Systems all Charges (without deduction or set off) within 30 days of the date of its invoice.
7.2 Unless otherwise stated all prices are exclusive of VAT, which shall be charged by Cactus Water Systems to you at the applicable rate.
7.3 Time for payment by you of all Charges shall be of the essence.
7.4 Without prejudice to any other right or remedy that it may have, if you fail to pay any Charges on their due date, Cactus Water Systems may:
7.4.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the Bank of England base rate from time to time accruing on a daily basis until payment is made;
7.4.2 suspend the supply of the Goods until payment has been made in full;
7.4.3 terminate the Contract with immediate effect.
7.5 Cactus Water Systems may, without prejudice to any other rights it may have, set off any liability of you to Cactus Water Systems against any liability of Cactus Water Systems to you. All sums payable to Cactus Water Systems under the Contract shall become due immediately on its termination, despite any other provision.
8. Limitation of liability - YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
- 8.1 This condition 8 sets out the entire financial liability of Cactus Water Systems (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to you in respect of:
8.1.1 any breach of the Contract;
8.1.2 any use made by you of the Goods or any part of them; and
8.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these Conditions limits or excludes the liability of Cactus Water Systems:
8.3.1 for death or personal injury resulting from negligence; or
8.3.2 for any matter which it would be illegal for Cactus Water Systems to exclude or attempt to exclude its liability; or
8.3.3 for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by Cactus Water Systems.
8.4 Cactus Water Systems shall not be liable for loss of profits, loss of business, depletion of goodwill and or similar losses, loss of contract, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
8.5 Cactus Water Systems' liability for any loss or damage to tangible property owned or occupied by you shall not exceed £1,000 in respect of any one incident or series of connected incidents.
8.6 In all other cases not falling within condition 8.5 above, Cactus Water Systems' total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract and supply of the Goods shall be limited to the aggregate of the Charges paid by you under the Contract.
- 9.1 You acknowledge and agree that details of your name, address and payment record may be submitted to a credit reference agency, and personal data may be processed by and on behalf of Cactus Water Systems in connection with the Contract.
9.2 Cactus Water Systems shall have no liability to you under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including the default of suppliers or subcontractors.
9.3 This Contract may only be amended or varied in writing signed by a duly authorised representative of Cactus Water Systems.
9.4 Cactus Water Systems may at any time assign, transfer, charge, mortgage, sub-contract or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party.
9.5 You acknowledge that, in entering into the Contract you have not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract). Nothing in these Conditions shall limit or exclude any liability for fraud.
9.6 If any provision of this Contract 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 the Contract and rendered ineffective as far as possible without modifying the remaining provisions of the Contract, and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract.
9.7 For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Contract 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.
9.8 The validity, construction and performance of the Contract shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts.