01202 743311

Terms and Conditions of Sale

Home > Terms and Conditions of Sale

 

 

The customer’s attention is drawn in particular to the provisions of clause 9.

  1. 1. Interpretation
    1. 1.1 Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.5.

Contract: the contract between Cumberland Structural Services Ltd and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from Cumberland Structural Services Ltd.

Force Majeure Event: has the meaning given in clause 10.

Goods: the goods (or any part of them) set out in the Order.

Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Cumberland Structural Services Ltd .

Supplier: Cumberland Structural Services Ltd [ (registered in England and Wales with company number 392776700)].

    1. 1.2 Interpretation
      1. (a) A reference to a statute or statutory provision is a reference to such statute or 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.
      2. (b) 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.
      3. (c) A reference to writing or written includes faxes and emails.
      4. 2. Basis of contract
    2. 2.1 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.
    3. 2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
    4. 2.3 The Order shall only be deemed to be accepted when Cumberland Structural Services Ltd issues a written acceptance of the Order, at which point the Contract shall come into existence.
    5. 2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
    6. 2.5 Any samples, drawings, descriptive matter or advertising produced by Cumberland Structural Services Ltd and any descriptions or illustrations contained in Cumberland Structural Services Ltd ’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
    7. 2.6 A quotation for the Goods given by Cumberland Structural Services Ltd shall not constitute an offer. A quotation shall only be valid for a period of 14 Business Days from its date of issue.
    8. 2.7 The customer shall have no right under any circumstances to cancel the contract or any part thereof without the prior written consent of Cumberland Structural Services Ltd which consent will not be unreasonably withheld and which shall be conditional upon the payment of such compensation as Cumberland Structural Services Ltd shall reasonably require.
    9. 3. Goods
    10. 3.1 Cumberland Structural Services Ltd reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
    11. 3.2 Cumberland Structural Services Ltd accepts no responsibility for the accuracy of the drawings, patterns or specifications supplied by the customer. The customer shall indemnify Cumberland Structural Services Ltd against all claims whatsoever for damages and costs and against all liability in respect of any infringement of patent or other intellectual property rights resulting from compliance with the buyers instructions express or implied.
    12. 4. Delivery
    13. 4.1 Cumberland Structural Services Ltd shall ensure that:
      1. (a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
    14. 4.2 Cumberland Structural Services Ltd shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Cumberland Structural Services Ltd notifies the Customer that the Goods are ready.
    15. 4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
    16. 4.4 Any dates quoted for delivery are approximate only and are given for information only and shall under no circumstances be essential terms. A delay in delivery shall not constitute a breach of contract and shall not entitle the customer to avoid the contract or to any other remedy.
    17. 4.5 Cumberland Structural Services Ltd 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 Cumberland Structural Services Ltd with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    18. 4.6 If 14 business days after the day on which Cumberland Structural Services Ltd notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Cumberland Structural Services Ltd 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.
    19. 4.7 Cumberland Structural Services Ltd may deliver the Goods by instalments, which shall be invoiced as agreed. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
    20. 5. Quality
    21. 5.1 Cumberland Structural Services Ltd warrants that on delivery the Goods shall:
      1. (a) conform in all material respects with the Specification;
      2. (b) be free from material defects in design, material and workmanship;
      3. (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
      4. (d) be fit for any purpose held out by Cumberland Structural Services Ltd .
    22. 5.2 Subject to clause 5.3, if:
      1. (a) the Customer gives notice in writing to Cumberland Structural Services Ltd 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;
      2. (b) Cumberland Structural Services Ltd is given a reasonable opportunity of examining such Goods; and
      3. (c) the Customer (if asked to do so by Cumberland Structural Services Ltd ) returns such Goods to Cumberland Structural Services Ltd place of business at Cumberland Structural Services Ltd ‘s cost,

Cumberland Structural Services Ltd shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

    1. 5.3 Cumberland Structural Services Ltd shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
      1. (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
      2. (b) the defect arises because the Customer failed to follow Cumberland Structural Services Ltd ‘s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
      3. (c) the defect arises as a result of Cumberland Structural Services Ltd following any drawing, design or Specification supplied by the Customer;
      4. (d) the Customer alters or repairs such Goods without the written consent of Cumberland Structural Services Ltd ;
      5. (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
      6. (f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
    2. 5.4 Except as provided in this clause 5, Cumberland Structural Services Ltd shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
    3. 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.
    4. 5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Cumberland Structural Services Ltd .
    5. 6. Title and risk
    6. 6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
    7. 6.2 Title to the Goods shall not pass to the Customer until the earlier of:
      1. (a) Cumberland Structural Services Ltd receives payment in full (in cash or cleared funds) for the Goods and any other goods that Cumberland Structural Services Ltd has supplied to the Customer; and
      2. (b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.5.
    8. 6.3 Until title to the Goods has passed to the Customer, the Customer shall:
      1. (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Cumberland Structural Services Ltd ‘s property;
      2. (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      3. (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      4. (d) notify Cumberland Structural Services Ltd immediately if it becomes subject to any of the events listed in clause 8.1; and
      5. (e) give Cumberland Structural Services Ltd such information relating to the Goods as Cumberland Structural Services Ltd may require from time to time.
      6. (f) Allow Cumberland Structural Services Ltd (and without prejudice to it’s other rights) to retake possession of the goods and Cumberland Structural Services Ltd, its servants or its agents shall be deemed to have been granted an irrevocable licence by the customer to enter upon the customer’s premises or premises under the customer’s control with or without vehicles for this purpose.
    9. 6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Cumberland Structural Services Ltd receives payment for the Goods. However, if the Customer resells the Goods before that time:
      1. (a) it does so as principal and not as Cumberland Structural Services Ltd ’s agent; and
      2. (b) title to the Goods shall pass from Cumberland Structural Services Ltd to the Customer immediately before the time at which resale by the Customer occurs.
    10. 6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy Cumberland Structural Services Ltd may have:
      1. (a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
      2. (b) Cumberland Structural Services Ltd may at any time:
        1. (i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
        2. (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
        3. 7. Price and payment
    11. 7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Cumberland Structural Services Ltd ’s published price list in force as at the date of delivery.
    12. 7.2 The price of the Goods:
      1. (a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Cumberland Structural Services Ltd at the prevailing rate, subject to the receipt of a valid VAT invoice; and
      2. (b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer
      3. (c) excludes the costs of any site work as required by the customer, this will be chargeable at £65.00 per hour, including travelling time to our the customers location.
    13. 7.3 Cumberland Structural Services Ltd may invoice the Customer for the Goods upon acceptance of the order.
    14. 7.4 The Customer shall pay the invoice in full and in cleared funds upon acceptance of the order, unless agreed with a company director in advance. Payment shall be made to the bank account nominated in writing by Cumberland Structural Services Ltd . Time for payment is of the essence.
    15. 7.5 If the Customer fails to make any payment due to Cumberland Structural Services Ltd under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8.0% per annum above the 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.
    16. 7.6 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). Cumberland Structural Services Ltd 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 Cumberland Structural Services Ltd to the Customer.
    17. 8. Termination
    18. 8.1 Without limiting its other rights or remedies, Cumberland Structural Services Ltd may terminate this Contract with immediate effect by giving written notice to the Customer if:
      1. (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
      2. (b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      3. (c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
      4. (d) the Customer’s financial position deteriorates to such an extent that in Cumberland Structural Services Ltd ’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    19. 8.2 Without limiting its other rights or remedies, Cumberland Structural Services Ltd may suspend provision of the Goods under the Contract or any other contract between the Customer and Cumberland Structural Services Ltd if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(d), or Cumberland Structural Services Ltd reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
    20. 8.3 Without limiting its other rights or remedies, Cumberland Structural Services Ltd may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
    21. 8.4 On termination of the Contract for any reason the Customer shall immediately pay to Cumberland Structural Services Ltd all of Cumberland Structural Services Ltd ’s outstanding unpaid invoices and interest.
    22. 8.5 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.
    23. 8.6 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.
    24. 9. Limitation of liability
    25. 9.1 Nothing in these Conditions shall limit or exclude Cumberland Structural Services Ltd ‘s liability for:
      1. (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      2. (b) fraud or fraudulent misrepresentation;
      3. (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
      4. (d) defective products under the Consumer Protection Act 1987.
    26. 9.2 Subject to clause 9.1:
      1. (a) Cumberland Structural Services Ltd 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
      2. (b) Cumberland Structural Services Ltd ‘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 price of the Goods.
      3. 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.

      1. 11. General
    2. 11.1 Assignment and other dealings.
      1. (a) Cumberland Structural Services Ltd 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.
      2. (b) 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 Cumberland Structural Services Ltd .
    3. 11.2 Entire agreement.
      1. (a) 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.
      2. (b) 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 agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    4. 11.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    5. 11.4 Waiver. 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.
    6. 11.5 Severance. 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 part-provision 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.
    7. 11.6 Notices.
      1. (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
      2. (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
      3. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    8. 11.7 Third party rights. No one other than a party to this Contract [and their permitted assignees] shall have any right to enforce any of its terms.
    9. 11.8 Governing law. 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.
    10. 11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.