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Interpretation: In these Conditions the 'BUYER' means the person whose order for Goods is accepted by the Seller. 'GOODS' means the goods (including any instalment of the goods or any parts for them), which the Seller is to supply in accordance with these Conditions. 'SELLER' means Xyfil Ltd (‘Cali Greens') (registered in England under number 09012568). 'CONDITIONS' means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller. 'CONTRACT' means the contract for the purchase and sale of the Goods in accordance with these Conditions. 'WRITING' includes e-mail, text, instant messages, telex, cable, facsimile transmission, and comparable means of communication. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
Accounts: Before the Seller will enter into any Contracts and/or sell any Goods to the Buyer, the Buyer must open and maintain a wholesale account with the Seller ('ACCOUNT'). The opening of an Account is conditional upon the Buyer confirming its acceptance of these Conditions which will then apply to each Contract and order for the purchase of Goods which is accepted by the Seller in accordance with the "Basis of the Sale" paragraph below. The Seller reserves the right to suspend or cancel any Account with the Buyer in any of the following circumstances: (1) The Buyer breaches or is in breach of these Conditions, including, without limitation, breach of any payment terms; is under the age of 18 (2) there is a change of Control of the Buyer (whereby Control means the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise) or the Buyer sells the whole or substantially the whole of its business and assets and/or seeks to assign the benefit of these Conditions without the prior written consent of the Seller or relocates outside of the United Kingdom (3) the value of Goods purchased from the Seller within any 12 month period is less than £1000 (excluding VAT) (4) failure on the part of the Buyer to provide the Seller with a any regulatory documentation and/or licences reasonably requested by the Seller (5) the Buyer or its employees or agents act improperly towards the Seller's employees or agents (6) the Buyer providing the Seller with false or misleading information at the time of account opening (7) the Buyer resells any Goods purchased from the Seller otherwise than to an end consumer or another authorised distributor of the Seller and in this regard, to help the Seller comply with its obligations to act as a responsible retailer of the Goods, the Buyer agrees that it will not sell any Goods purchased from the Seller to any wholesaler, retailer or other third party (which, for the avoidance of doubt and for the purposes of this clause, shall not include another authorised distributor of the Seller or any end consumer) unless expressly permitted to do so in writing by the Seller. Where the Seller suspends or cancels any Account of the Buyer in any of the circumstances set out above then the Seller shall be under no obligations to supply any Goods to the Buyer from that point onwards and any sums then owing to the Seller shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Basis of the Sale: The Seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer which is accepted by the Seller, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, applications or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information, issued by the Seller shall be subject to correction without any liability on the part of the Seller.
Orders and Specifications: The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. The quantity, quality and description of and any specification for the Goods shall be those set out in the Buyer's order (if accepted by the Seller). The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation and in addition to, the Seller shall be entitled to make a handling and resale charge.
Price of the Goods: The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of acceptance of the order. All prices quoted are subject to change without notice until acceptance by the Buyer. The Seller reserves the right, at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuations, currency regulation, alteration of duties, significant increase in the costs of labour materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions. Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
Terms of Payment: Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods. The Buyer shall pay the price of the Goods immediately at the point of order confirmation. If the Seller has agreed payment terms, payment shall be made by the end of the month following the date of the Seller's invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the prices shall be of the essence of the Contract. Receipts for payment will be issued only upon request. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: cancel the Contract or suspend any further deliveries to the Buyer; appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer), charge the interest (both before and after any judgement) on the amount unpaid, at the rate of 1/2 per cent per annum above National Westminster Bank base rate from time to time, until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest), and charge the Buyer a reasonable administration charge together with the costs and expenses (including legal costs) of pursuing the Buyer for payment.
Delivery: Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. Where the Goods are to be delivered in instalments each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is, accordingly, liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any causes beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may: Store the Goods until actual delivery and charge the Buyer for the reasonable cost (including insurance) of storage; or Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
Risk and Property: Risk of damage to or loss of the Goods shall pass to the Buyer: In the case of Goods to be delivered at the Seller's premises at the time when the Seller notifies the Buyer that the Goods are available for collection or in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods, which remain the property of the Seller, but if the Buyer does so, all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller forthwith) become due and payable.
Warranties and Liability: Subject to the Conditions set out below and to the Conditions of any specific guarantee in relation to the Goods, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for the duration of any guarantee offered by the Seller and properly accepted by the Buyer. The above warranty is given by the Seller subject to the following Conditions: The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal storage or working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval or where the Goods differ from their description and/or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment; For the avoidance of doubt the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller. Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1994), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specifications shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit (direct or indirect) or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control: Act of God, explosion, flood, tempest, fire or accident: War or threat of war, sabotage, insurrection, civil disturbance or requisition: Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority: Import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); Difficulties in obtaining raw materials, labour, fuel, parts or machinery; Power failure or breakdown in machinery.
WEEE Regulations: Once EEE supplied by Cali Greens becomes WEEE, it will be the responsibility of the customer to arrange for the appropriate treatment and recycling of WEEE. Indemnity: If any claim is made against the Buyer that the Goods infringe or that their use or sale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that; The Seller is given full control of any proceedings or negotiations in connection with any such claim; The Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations; Except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld); The Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do). The Seller shall be entitled to the benefit of, and the Buyer shall accordingly, account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
Insolvency of Buyer: This clause applies if: The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or The Buyer ceases, or threatens to cease, to carry on business: or The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. General: 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 at its registered office or principal place of business or such other address which may at the relevant time have been notified pursuant to this provision to the party giving the notice and shall be sent by pre-paid first class post, recorded or special delivery, by commercial courier or by fax but not by e-mail. The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all of any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all of any of its rights or obligations under the Contract without the prior written consent of the Seller. A person who is not a party to the Contract shall not have any rights under or in connection with it. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby. The Contract, and any dispute or claim arising out of or in connection with its subject matter or formation (including noncontractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.