Brexit: the UK ceasing to be a member state of the European Union and ceasing to be subject to the transition or implementation arrangements provided for by Part 4 of the withdrawal agreement between the UK and the European Union negotiated under Article 50(2) of the Treaty of the European Union which sets out the arrangements for the UK’s withdrawal from the European Union.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyer: the person or firm who purchases the Goods from the Seller.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Terms and Conditions.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Force Majeure Event: has the meaning provided in clause 5.1.
Goods: the goods (or any part of them) set out in the Order.
Insolvency Event: means an event where a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
Invoice: means any invoice supplied by the Seller to the Buyer for the supply and purchase of the Goods.
Order: the Buyer’s order for the Goods as set out in the Buyer’s purchase order form or the Buyer’s written acceptance of the Seller’s quotation or the Buyer placing an order over the phone (as the case may be).
Order Confirmation: means the written confirmation supplied by the Seller to the Buyer, confirming acceptance of the Order.
Seller: Carlisle Construction Materials Limited, registered in England and Wales with company number 01374446.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Buyer and the Seller.
Terms and Conditions: the terms and conditions set out in this document, as amended from time to time in accordance with clause 16.5.
These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms and Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
The Order shall only be deemed to be accepted when the Seller issues an Order Confirmation, at which point the Contract shall come into existence.
The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Terms and Conditions, the Invoice and the Order Confirmation.
Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’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.
A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
The Seller reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
Unless a binding price has been otherwise agreed, the prices shown in Seller’s price list shall apply on the date of
The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
any factor beyond the Seller’s reasonable control (including without limitation, Brexit, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
any delay causes by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
The price of goods:
excludes amounts in respect of value added tax (VAT) which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
excludes the costs and charges of packing, insurance and transport of the Goods, which shall be invoiced to the Buyer.
each delivery of the Goods is accompanied with a delivery note that shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
if the Seller requires the Buyer to return any packaging materials to the Seller, that fact is stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such time as the Seller shall reasonably request.
The Seller 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 the Seller notifies the Buyer that the Goods are ready or the Buyer shall collect the Goods from the Seller’s premises or such other location as may be advised by the Seller prior to delivery (Collection Location) within three Business Days of the Seller notifying the Buyer that the Goods are ready.
Delivery is completed on the completion of unloading or loading of the Goods at the Delivery Location or the Collection Location (as the case may be).
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by Brexit, or a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by Brexit or a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If the Buyer fails to take or accept delivery of the Goods (as the case may be) within three Business Days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
delivery of the Goods shall be deemed to have been completed at 09.00am on the third Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and
the Seller shall store the Goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).
If ten Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken or accepted actual delivery of them (as the case may be), the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
Unless otherwise expressly stated in writing by the Seller, delivery of the Goods shall be made DAP (delivery at place). All risks in respect of the Goods shall be borne by the Buyer after delivery and the Buyer is fully and solely responsible for ensuring the Goods are cleared for import (where applicable). The Buyer is also responsible for the payment of all applicable costs, duties and taxes associated with import clearance.
The Seller’s standard delivery is via articulated Any special delivery instructions or particular site requirements must be communicated by the Buyer to the Seller, upon placing the Order and in any event, prior to Seller issuing an Order Confirmation. Under no circumstances shall the Seller be responsible for any costs or delays incurred by the Buyer if special delivery instructions are not so communicated to the Seller.
Force Majeure Event means any circumstance not within a party’s reasonable control, including without limitation: acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, war, war risk, civil commotion or riots, armed conflict, imposition of sanctions, embargo, call-up, collapse of buildings, fire, explosion or accident, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, loss or theft of tools/materials, factory disturbance, strike, blockades, shut-out, traffic disruption, disruption to the delivery of raw materials/semi-manufactured goods, staff illness, late or non-performance of sub-suppliers/ contractors with their obligations, interruption or failure of utility service.
If the Seller is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, the Seller shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
If the Force Majeure Event prevents, hinders or delays the Seller’s performance of its obligations for a continuous period of more than 2 weeks, the Seller may terminate the Contract by giving 3 days’ written notice to the Buyer.
The Seller is at all times entitled to demand additional/ extra security from the Buyer in order to comply with existing or future obligations. If the Buyer refuses or fails to provide such security within the period set by the Seller, the Seller has the right to immediately terminate the Contract, without becoming liable for compensation.
In the event of any such termination under clause 6.1 and if the Seller has already delivered Goods to the Buyer, the Buyer shall either pay for the Goods in full, immediately upon demand or, return the Goods to the Seller no later than 2 Business Days after being requested to do so.
The Seller may invoice the Buyer on or at any time after the Goods are dispatched for delivery (or, in the case of collection, upon collection by the Buyer or its nominated carrier). All Invoices must be paid within the stated terms of the Invoice and must be paid in full and in cleared funds to a bank account nominated in writing by the Seller. Time for payment shall be of the essence of the Contract.
If the Buyer fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller’s remedies under clause 13, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.2 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but 8% a year for any period when that base rate is below 0%.
If the Seller initiates collection proceedings, the Buyer is required to reimburse all out-of-court costs incurred due to the collection fee, subject to a minimum amount of £150.00 excluding The Buyer is also required to reimburse the costs of judicial collection, such as the costs of confiscation and the costs of a bankruptcy petition.
If the Buyer is late in complying with any payment obligation in respect of the Seller, the Buyer shall be in default in respect of all claims, including those that are not yet claimable. In this case, the Seller shall also have the right to part with the claims that are not yet claimable.
In case of liquidation, bankruptcy, suspension of payment or application of the statutory debt collection scheme, all obligations of the Buyer shall be claimable with immediate.
In the event that the Buyer is a limited company, the directors of such shall be personally liable on a joint and several basis for all amounts due to the Seller under the Contract.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
The risk in the Goods shall pass to the Buyer on completion of delivery.
Title to the Goods shall not pass to the Buyer until the earlier of:
the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 8.4.
Until title to the Goods has passed to the Buyer, the Buyer shall:
store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
notify the Seller immediately if it becomes subject to an Insolvency Event; and
give the Seller such information as the Seller may reasonably require from time to time relating to the Goods and the ongoing financial position of the Buyer.
Subject to clause 8.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:
it does so as principal and not as the Seller’s agent; and
title to the Goods shall pass from the Seller to the Buyer immediately before the time which resale by the Buyer occurs.
At any time before title to the Goods passes to the Buyer, the Seller:
may by notice in writing, terminate the Buyer’s right under clause 8.4 to resell the Goods or use them in the ordinary course of its business; and
require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
The Seller warrants that on delivery and for a period of twenty years following delivery (Warranty Period), the Goods shall conform in all material respect with any applicable Specification and be free from material defects in design, material and workmanship.
The Buyer shall do everything necessary upon delivery to ascertain that the Goods delivered comply with the terms of the Order. Subject to clause 9.3, if during the Warranty Period:
the Buyer gives prompt notice in writing to the Seller (and in any event within 48 hours of becoming aware of the same)that some or all of the Goods do not comply with the warranty set out in clause 9.1;
the Seller is given a reasonable opportunity of examining such Goods; and
the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business (at the Buyer’s risk), the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 9.1 in any of the following events
the Buyer makes any further use of such Goods after giving notice in accordance with clause 9.2;
the defect arises because the Buyer failed to follow the Seller’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;
the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer;
the Buyer alters or repairs such Goods without the written consent of the Seller;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Except as provided in this clause 9, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 9.1.
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.
These Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
The Buyer must accept an industry-standard tolerance on the scope of delivery or any other agreed
Complaints can never be used to suspend the payment obligations of the Buyer.
An Order, once accepted under clause 2.3 cannot be cancelled by the Buyer, without the Seller’s written consent (such consent to be provided at its sole discretion).
Save in the case where clause 9 applies and the Buyer is retuning defective Goods, no other Goods, once delivered, may be returned by the Buyer to the Seller, without the Seller’s written consent (to be provided/withheld at its sole discretion). Where the Seller allows a return under this clause 10.2, the Buyer shall pay to the Seller at the point of return a restocking and administration fee of 30% of the invoice value for the relevant Goods that are returned to the Seller.
Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
death or personal injury caused by negligence;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
any other liability cannot be limited or excluded under applicable law.
Subject to clause 11.1, the Seller’s total liability to the buyer shall not exceed a sum equal to 110% of the price of the Goods that gave rise to such liability.
Subject to clause 11.1, the following types of loss are wholly excluded
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
indirect or consequential loss.
If the Buyer resells the delivered items or forms new items from the items delivered by the Seller and resells these, the Buyer is required to take out adequate insurance against the product A copy of the relevant policy must be sent to the Seller on demand.
This clause 11 shall survive termination of the Contract.
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the Specification. This clause 12.1 shall survive termination of the Contract.
Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer:
commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after being notified to do so;
is subject to an Insolvency Event;
suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to an Insolvency Event or the Seller reasonably believes that the Buyer is about to become subject to one, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
Unless expressly agreed otherwise, the Seller is also entitled to produce special items, which are made for the Buyer, for third
The Buyer must approve samples of special items within 14 days of If the Seller does not receive a rejection report after 14 days, the samples will be deemed approved.
Unless expressly agreed otherwise, all models, moulds, samples, forms, drawings and all other equipment and instructions involved with the making of special items are and shall remain the property of the
The Buyer is responsible for the costs of replacement, repairs and maintenance of the
Drawings, know-how and designs which the Seller places at the disposal of the Buyer may not be copied or passed to third parties for inspection or made public knowledge without the written consent of the Seller after use. If any of these terms and conditions is infringed, the Buyer shall pay the Seller an immediately collectable penalty of £50,000.00 per instance and £5,000 for each day that the infringement continues.
The Seller has the right to destroy moulds regardless of whether they are the property of the Seller or the Buyer if they have not been used for a period of 2 years. The Seller shall notify the Buyer of its intention to destroy such materials 3 months prior to expiry of the 2 year period.
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.
Each party may disclose the other party’s confidential information:
to its to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 15; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 the Seller.
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.
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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 15.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email to the address specified in the Order and Order Confirmation.
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.
Each party irrevocably agrees that the courts of England 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.