The Customer's attention is particularly drawn to the provisions of clause 12.
1.1 Definitions: In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Cactus Kitchens: shall mean the premises from time to time occupied by the Supplier for the provision of the Services and the sale of Goods and Gift Vouchers.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier (including by exchange of Gift Vouchers for Goods and/or Services).
Delivery Location: has the meaning set out in clause 4.1.(b).
Force Majeure Event: has the meaning given to it in clause 14.1(a).
Gift Voucher: gift vouchers purchased from the Supplier for use in the purchase of Goods or Services sold or supplied by the Supplier.
Goods: the goods (or any part of them) purchased.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services made on the website or by telephone or in person.
Services: the services, including the cookery classes, wine tastings and events supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided on the website.
Supplier: The Cactus Kitchens Limited registered in England and Wales with company number 8168267.
Supplier Materials: has the meaning set out in clause 8.1(d).
Website: the website of the Supplier from time to time currently to be found at: cactuskitchens.co.uk
1.2 Construction: In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) 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; and
(e) a reference to writing or written includes e-mails, but not faxes.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 The purchaser of a Gift Voucher from the Supplier shall be deemed to be acting as agent for the person to whom the Gift Voucher is to be given.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS AND GIFT VOUCHERS
3.1 The Goods are described on the website.
3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.3 Gift Vouchers are valid until the expiry date as stated on the gift voucher. Classes must be booked or Goods brought within this period. Gift vouchers not used during this period shall be void, no extensions are permitted.
3.4 Gift Vouchers are non-refundable and no cash alternative will be provided.
3.5 Valid gift vouchers issued for specific class types (for example: the Michel Roux Jr Experience) will be exempt from any price increases when redeemed against the intended class type during its validity.
3.6 Once issued, Gift Vouchers are the Customer's responsibility; each voucher has a unique issue code and must be kept safe, as the Supplier cannot be responsible if the code is redeemed by someone else. The Gift Vouchers are as valuable as book tokens. If a Gift Voucher is lost by the Customer, it can be replaced only for its original validity period, and only if the redemption code has not been utilised.
4. DELIVERY OF GOODS
4.1 The Supplier shall deliver the Goods ordered by telephone or from the website to the location set out in the Order or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Goods are ready or the Customer shall collect the Goods from the Supplier's premises at Cactus Studios, 1 St Luke's Avenue, London, SW4 7LG or such other location as may be advised by the Supplier before collection (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.2 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or 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.
4.4 If the Supplier fails to deliver the Goods, 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 Force Majeure Event, the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods, or any relevant instruction related to the supply of the Goods.
4.5 If the Customer fails to accept or take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 4th Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If 21 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.7 The Supplier may deliver the Goods 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 Customer to cancel any other instalment.
5. QUALITY OF GOODS
5.1 The Supplier warrants that on delivery the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Goods or Gift Vouchers shall pass to the Customer on completion of delivery.
6.2 Title to the Goods or Gift Vouchers shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds or redemption of Gift Vouchers) for the Goods or Gift Vouchers.
7. SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified on the website, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 The Supplier's Services are not generally suitable for persons under the age of sixteen and (unless specifically agreed with the Supplier) any Customer under that age will not be allowed to attend at Cactus Kitchens.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(d) keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) in the Customer's possession in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
(e) be responsible for any property belonging to the Customer brought to "Cactus Kitchens" which shall be at the Customer's own risk and the Supplier accepts no responsibility for any loss or damage to the property of any Customer.
8.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8.3 Where possible, the Supplier's chefs will accommodate dietary requests with a minimum notice of 7 days prior to the relevant class taking place. The Supplier is unable to guarantee that the Services are suitable for food allergy sufferers. Allergies are the responsibility of the individual Customer and not of the Supplier. The Supplier will not be responsible for allergic reactions to foodstuffs. Food prepared supplied by the Supplier may contain traces of nuts.
8.4 If a Customer appears to be under 25, he or she will have to produce suitable photographic proof of identity before the Supplier will be able to serve that Customer wine. Wine will be served only to individuals aged 18 or over. It is an offense to sell alcohol to anyone aged less than 18 year or for an adult to secure alcohol on their behalf.
8.5 Where the Services include wine, please note that this offer is not for unlimited wine.
8.6 Alcohol sold for consumption offsite cannot be consumed at Cactus Kitchens.
9. CHARGES AND PAYMENT
9.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list on the website as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
9.2 The charges for Services shall be as set out on the website:
9.3 The Supplier reserves the right to:
(a) increase its standard charges for the Services, provided that such charges cannot be increased once any Services have been the subject of an accepted Order.
(b) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of both Goods and Services, the Supplier shall charge the Customer on acceptance of an Order by debit or credit card through the website or over the telephone and/or by cash in person and time for payment shall be of the essence of the Contract.
9.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer may request a VAT invoice from the Supplier.
9.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
10.3 All Supplier Materials are the exclusive property of the Supplier.
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier's business or its products or its services which the Customer may obtain. This clause 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1:
(a) the Supplier shall under no circumstances whatever 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
(b) 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 the amount paid by the Customer under the Contract.
12.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13. CANCELLATION POLICY
13.1 Experience dates or times are non-transferrable to another date or time after any Cactus Kitchen Experience is booked. For cancellation of bookings on more than 28 days' notice a cancellation administration fee of £10 per class place will be charged. In the case of bookings cancelled on between 3-28 days' notice the Supplier shall endeavour to sell the cancelled booking to another customer and (if the Supplier is able to do so) a refund less the administration fee will be made to the Customer but (if the Supplier is unable to resell the booking) the full fee will be charged. For no-shows and cancellations of less than 72 hours, the full course fee will be forfeited. This cancellation policy stands for all bookings being cancelled, even if transferring to another date. All refunds will be made in Cactus Kitchen gift vouchers; no cash refunds will be available. If you are unable to attend at the last minute due to illness or other unforeseen circumstances, your booking can be transferred to another person but not to another date.
13.2 In exceptional circumstances, the Supplier reserves the right to cancel published classes. Customers whose bookings are affected will be transferred to a suitable alternative date. Scheduled classes will always take place on the day unless prevented by a Force Majeure Event. If a class is prevented from taking place on the day by a Force Majeure Event an alternative class will be offered.
13.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.4 Retail purchases made by telephone or via the website are subject to the distance selling regulations. Should the Customer change his or her mind after making a purchase, the Customer will have 7 days to notify the Supplier that the Customer wishes to cancel his or her order. The Customer may notify the Supplier by telephone, post or e-mail of cancellation in these circumstances. Return postage expenses will be the responsibility of the Customer returning goods. The Services, Gift Voucher purchases and fresh food purchases are exempt from these regulations.
14.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, illness, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than eight weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.2 Assignment and subcontracting: The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party's email address.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by email, on the next Business Day after transmission.
(c) This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall include emails and for the avoidance of doubt notice given under this Contract shall be validly served if sent by e-mail.
14.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
14.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.