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Trading Terms & Conditions

The Customer's attention is particularly drawn to the provisions of clauses 8.1(f) and 10.

1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day:

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Conditions:

these terms and conditions as amended from time to time in accordance with clause 13.7.

Contract:

the contract between the Supplier and the Customer for the supply of Materials and/or Services in accordance with these Conditions.

Customer:

the person or firm who purchases the Materials and the Services from the Supplier.

Delivery Location:

has the meaning set out in clause 4.1.

Force Majeure Event:

has the meaning given to it in clause 12.1.UPDATE FC

Materials:

the materials set out in the Order used in the provision of the Services.

Materials Specification:

any specification for the Materials, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Order:

the Customer's order for the supply of the Materials and Services, as set out in the Customer's written acceptance of the Supplier's estimate, or overleaf, as the case may be.

Services:

the services supplied by the Supplier to the Customer as set out in the Service Specification.

Service Specification:

the description or specification for the Services as set out in the Supplier's estimate, or overleaf, as the case may be.

Supplier:

Jeremy Curling, trading as, Curling Contractors.

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 faxes and e-mails.

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase the Materials and the 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.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty 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 or included on the Supplier's website and any descriptions of the Materials or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Materials described in them. They shall not form part of the Contract or have any contractual force.

2.5 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.

2.6 Any estimate given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

2.7 All of these Conditions shall apply to the supply of both Materials and Services except where application to one or the other is specified.

3. Materials

3.1 The Materials are described in the Materials Specification.

3.2 The Supplier reserves the right to amend the Materials Specification if required by any applicable statutory or regulatory requirements.

3.3 Timber Materials in ground contact will be redwood from forests managed to FSC standards. Such Materials are dried to give a maximum moisture content of 28% and pressure treated in accordance with BSEN351-1. Any service life referred to in such standard is indicative only and does not operate as a guarantee of performance which may be affected by mechanical damage or particular soil or other environmental conditions.

4. Delivery of Materials

4.1 The Supplier shall deliver the Materials to the location set out in the Order or such other location as the parties may agree (Delivery Location).

4.2 Delivery of the Materials shall be completed on the Materials' arrival at the Delivery Location.

4.3 Any dates quoted for delivery of the Materials are approximate only, and the time of delivery is not of the essence.

5. Quality of Materials

5.1 The Supplier warrants that on delivery, and for a period of 24 months from the date of delivery (warranty period), the Materials shall:

(a) be free from material defects in design, material and workmanship;

(b) be of satisfactory quality (within the meaning of the Sale of Materials Act 1979); and

(c) 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 during the warranty period, within a reasonable time of discovery, that some or all of the Materials do not comply with the warranty set out in clause 5.1; and

(b) the Supplier is given a reasonable opportunity of examining such Materials,

the Supplier shall, at his option, repair or replace the defective Materials.

5.3 The Supplier shall not be liable for the Materials' failure to comply with the warranty in clause 5.1 if:

(a) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the use or maintenance of the Materials;

(b) the defect arises as a result of the Supplier following any design or Materials Specification supplied by the Customer;

(c) the Customer alters or repairs such Materials 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 Materials differ from the Materials Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards;

(f) the defect arises owing to abnormal environmental conditions;

(g) the defect arises owing to grass cutting, strimming or any other mechanical damage or arises owing to chemical spraying.

5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Materials' 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 Materials supplied by the Supplier under clause 5.2.

6. risk and title

6.1 The risk in the Materials shall pass to the Customer on completion of delivery.

6.2 Title to the Materials shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Materials.

6.3 Until title to the Materials has passed to the Customer, the Customer shall:

(a) store the Materials separately from all other Materials held by the Customer so that they remain readily identifiable as the Supplier's property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Materials;

(c) maintain the Materials in satisfactory condition;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.1; and

(e) give the Supplier such information relating to the Materials as the Supplier may require from time to time.

6.4 If before title to the Materials passes to the Customer, the Customer becomes subject to any of the events listed in clause 11.1, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:

(a) require the Customer to deliver up all Materials in its possession; and

(b) if the Customer fails to do so promptly, enter onto the land of the Customer where the Materials are stored in order to recover them.

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 in the Service Specification, 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.

8. Customer's obligations

8.1 The Customer shall:

(a) ensure that the terms of the Order and (if submitted by the Customer) the Materials Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier, his employees and subcontractors, with access to the Customer's property as reasonably required by the Supplier to deliver the Materials and provide the Services;

(d) 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;

(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(f) ensure that the Supplier is informed in writing as to the location of any underground services (including gas, telephone, water and electricity) prior to commencement of the supply of the Services.

8.2 If the Supplier's performance of any of his 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 his 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 him from the performance of any of his 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 his obligations as set out in this clause 8; 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.

9. Charges and payment

9.1 The price for Materials and the charges for the Services shall be the price set out in the Order.

9.2 The Supplier reserves the right to:

(a) increase the price of the Materials, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Materials to the Supplier that is due to:

(i) any factor beyond the control of the Supplier (including 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 Materials ordered, or the Materials Specification; or

(iii) any delay caused by any instructions of the Customer in respect of the Materials or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Materials.

9.3 In respect of Materials, the Supplier shall invoice the Customer on or at any time after the Order is made. In respect of the Services, the Supplier shall invoice the Customer upon completion of the Services or in accordance with any payment instalments referred to in the Order or the Supplier's estimate as the case may be.

9.4 The Customer shall pay each invoice submitted by the Supplier within 14 days of the date of the invoice 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 shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Materials at the same time as payment is due for the supply of the Services or Materials.

9.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank PLC'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.

9.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting his other rights or remedies, set off any amount owing to him by the Customer against any amount payable by the Supplier to the Customer.

10. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:

(a) death or personal injury caused by his negligence, or the negligence of his employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 2 of the Supply of Materials and Services Act 1982 (title and quiet possession);

(d) breach of the terms implied by section 12 of the Sale of Materials Act 1979 (title and quiet possession); or

(e) defective products under the Consumer Protection Act 1987.

10.2 Subject to clause 10.1:

(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 price for the Materials and the Services as set out in the Order.

10.3 The terms implied by sections 13 to 15 of the Sale of Materials Act 1979 and the terms implied by sections 3 to 5 of the Supply of Materials and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

10.4 This clause 10 shall survive termination of the Contract.

11. Termination

11.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

(d) the other party (being an individual) is the subject of a bankruptcy petition or order;

(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

(g) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(a) to clause 11.1(h) (inclusive);

(j) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

(k) the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

11.2 Without limiting his other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

11.3 Without limiting his other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Materials 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, the Customer becomes subject to any of the events listed in clause 11.1(a) to clause 11.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

11.4 On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

12. Force majeure

12.1 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 Supplier 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, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

12.2 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.

12.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Materials 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.

13. General

13.1 Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, 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.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

13.2 Notices.

(a) Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

(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 13.2(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 e-mail, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action

13.3 Severance.

(a) 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.

(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.4 Waiver. A waiver of any right under the Contract or law 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 prevent or restrict its 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.

13.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

13.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

13.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

13.8 Governing law. This agreement 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 the law of England and Wales.

13.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).