Terms of Business

These terms (Terms of Business) shall apply to our supply of road construction and surfacing goods and services (Services). These Terms of Business replace and supersede any previous proposals, correspondence, understandings or other communications between us whether written or oral. In each case where we agree to supply to you our Services each service will be on the terms and conditions contained in these Terms of Business and will form a seperate legal agreement (Agreement). The Agreement shall apply to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document). In these Terms of Business "we" and "our" refers to CIK Construction, a general partnership, at Tyelands Farm, South Hill, Langdon Hills, Basildon, Essex SS16 6JD, and "you" and "your" refers to the person firm or entity on whose behalf our quotation is acknowledged and/or signed.

1 Formation of an Agreement

  • 1.1 Any order from you, for example on your purchase order document, or purported acceptance of our quotation for our Services shall be deemed to be an offer by you subject to these Terms of Business (Offer). You shall ensure that any Offer is complete and accurate.
  • 1.2 Unless and Until we issue a written order acknowledgment to you of an Offer or start any work on the Services, a binding contract shall not come into existence between us. Acceptance by us of an Offer may be subject to satisfactory references and guarantees.
  • 1.3 You may not cancel any order which we have acknowledged except with our written permission and where you hold us harmless in full against any loss (including loss of profit) costs, charges and expenses incurred by us as a result of your cancellation.

2 Responsibilities and Facilities

  • 2.1 You shall ensure the site is safe and there is good access for our plant and machinery to the point to which they need to be used. If access is not available then you will be responsible for any extra costs incurred.
  • 2.2 You will inform us of any Health & Safety requirements to be adhered to by our employees, officers, agents or subcontractors if they are required to attend the site.
  • 2.3 You shall ensure that there is a sufficient amount of work available during the day to ensure a reasonable continuity and any standing time due to delays in preparation of the site shall be paid for by you.
  • 2.4 You shall be responsible for (a) maintaining and providing adequate water supplies within a reasonable distance of the site to be surfaced (b) ensuring there is free and suitable access for our plant and machinery and space to stock-pile any of our materials should this be necessary (c) the safety of our property and employees whilst at the site (d) complying with all statutory and other legal and regulatory requirements relating to the site.
  • 2.5 Quotations and any Agreements are always subject to the availability of supplies, materials, plant and labour.
  • 2.6 Where our quotation has been submitted based on your specification, we do not give any warranty, express or implied, that such specification is suitable for the conditions to be met. Consequently we do not accept responsibility if events prove the specification unsuitable. We also not accept responsibility for: (a) subsidence (b) any damages which may be caused due to causes over which we have no control (c) any damage caused to kerbs, walls, edging, iron works or other structures above or below ground from the reasonable use and storage of our plant and materials.
  • 2.7 Where we supply in connection with the provision of the Services any goods supplied by a third party we cannot give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to you the benefit of any warranty, guarantee or indemnity given by the person supplying such goods to us.
  • 2.8 Whilst we shall meet the service response times in accordance with the Agreement, these times are estimates only and are not of the essence of the Agreement.

3 Price and Variation of Works

  • 3.1 All quotations are valid for 1 month (unless a lesser time is stated on the quotation) from the issue date and are, unless otherwise stated, exclusive of VAT, delivery, packing, packaging, carriage, insurance and other charges. However, we may withdraw a quotation at any time by notice to you.
  • 3.2 We reserve the right to revise our charges at any time in the event of any changes whatsoever in the scope of the Services required to be provided. Any changes to the scope of the Services shall not be covered under our Agreement unless and until we have agreed the amendments.
  • 3.3 We reserve the right to increase our charges in line with increases to our costs such as the costs of labour, materials, transport and handling.
  • 3.4 We reserve the right to make an additional charge for our costs and as appropriate damages if (a) we are required to make more than one visit to the site and such additional visits are not provided for in our quotation (b) we are required to work outside of normal office hours which is Monday to Friday (excluding public and bank holidays) (c) the levels of thickness of any course exceeds the amount stated in our quotation (d) you require the Services to be suspended and then restarted (e) preparatory work is required such as cleaning surfaces or if any other work is required during the performance of the Services such as sealing or surface dressing (and where we agree to provide any of this work) (f) any services provided to you do not or are subsequently found out not to be included in an Agreement, on a time and materials basis at our then current rates (g) work is required at any location other than the site

4 Payment

  • 4.1 You agree to pay our charges at the end of the month following the month that an invoice is issued. We may require a deposit prior to starting work on the Services, for example, the costs for us to buy in tarmac.
  • 4.2 We will invoice you immediately following the completion of the Services. However, where the Services take longer than one month to complete we will issue an interim invoice at the end of each month. Payment of interim invoices is within 21 days of the date of their issue.
  • 4.3 You will be responsible for paying any expenses reasonably incurred by us in connection with the performance of the Services or otherwise at your direction, for example, the costs of materials or the costs of services reasonably and properly provided by third party subcontractors.
  • 4.4 All payments due to us from you under any Agreement shall be paid to us without deduction, setoff, counterclaim or any other withholding.
  • 4.5 Time for all payments due to us from you shall be of the essence.
  • 4.6 If you fail to pay us on the due date any amount due to us the whole of the balance of any amount then owing to us shall become immediately due and payable and without prejudice to any other right or remedy available to us we may:
  • 4.6.1 Charge interest on such sum due to us for payment at the rate 3% over Barclays Bank base rate accruing on a daily basis and being compounded quarterly until payment is made (before as well as after judgment); and
  • 4.6.2 Suspend further performance of any and all Services until payment together with any interest is made in full; and
  • 4.6.3 terminate any and all Agreements.
  • 4.7 We may without prejudice to any other rights we may have, set off any liability you have to us against any liability we may have to you.
  • 4.8 Without prejudice to any right or claim for interest or any other right under these Terms of Business all sums due to us shall become immediately due to us on termination of an Agreement.

5 Description of Goods

  • 5.1 The description of the goods to be supplied shall be as set out in our quotation.
  • 5.2 All specification, descriptions, drawings and advertising issued by us and or contained in any brochures or on our website are for illustrative purposes only and they do not form part of an Agreement. Any error or omission in any of our sales literature, quotation, invoice or any other document or information issued by us shall be subject to correction by us without liability on our part.
  • 5.3 Without prejudice to our liability for any fraudulent misrepresentation, our employees, contractors and agents are not authorised to make any contractually binding representations concerning the goods. You acknowledge by entering into an Agreement that you do not rely on and waive any claim for breach of any such representations which have not been confirmed by one of our authorised officers in writing.

6 Risk and Property

  • 6.1 No ownership in any goods purchased for the performance of an Agreement shall pass to you until the later of the time when we have received in full all sums due in respect of the goods and any other sum which is due to us from you.
  • 6.2 Until ownership of the any goods has passed to you under condition 6.1, to the extent you are in possession of them, you shall keep them:
  • 6.2.1 at your cost in satisfactory condition and in such a manner that it remains readily identifiable as our property;
  • 6.2.2 on a fiduciary basis as our bailee; and
  • 6.2.3 insured on our behalf for their full price against all risks and hold proceeds of any such insurance on trust for us and not mix them with any other money nor pay the proceeds into any overdrawn bank account.
  • 6.3 You grant us, our agents and employees an irrevocable licence to enter any site where any goods are stored in order to inspect them, or where your right to possession is terminated to remove them.
  • 6.4 Termination of an Agreement shall not affect our rights under this clause.

7 Warranty

7.1 Maintenance shall unless otherwise stated be a for fixed period of six months commencing from the date of completion of our Services and not from the date of completion of the main contract or any other type of work. When work is carried out in sections a seperate date for completion shall be agreed for each section. Our duty to maintain is limited to our workmanship and the quality of materials supplied by us, fair wear and tear excepted.

8 Liability

  • 8.1 Our liability to you under any Agreement shall not be limited for fraud; death or personal injury caused by our negligence or any other by any other liability which be law we are not permitted to limit.
  • 8.2 Subject to clause 8.1 our total liability to you arising out of a failure to provide any goods or services to you or any delay in providing any goods or services to you or in connection with our provision of any goods or services shall be limited to that proportion of your actual loss and damage which was directly and solely caused by us (Direct Loss). For the avoidance of doubt, even if you bring a matter to our attention Direct Loss shall not include any indirect or consequential loss or damage which means without limitation any loss of profits; loss of business; loss of anticipated savings; or any other special indirect consequential or pure economic loss, costs, damages, charges or expenses.
  • 8.3 Subject to clause 8.1 our total liability to you for Direct Loss shall be limited to the total amount of the relevant quotation for the Services.
  • 8.4 Subject to clause 8.1 you agree to indemnify us to the fullest extent possible from and against all liability whatsoever or howsoever arising (even if we have been negligent) brought or threatened against us by a third party arising out of or in connection with your breach of any of the terms of any Agreement.
  • 8.5 You acknowledge that we only contract with persons dealing as businesses. If, however, it is deemed that you are dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) your statutory rights are not affected.

9 Termination

  • 9.1 You amy only cancel an Agreement in accordance with the provisions of clause 1.3.
  • 9.2 Without prejudice to any other right or remedy available to us, we may terminate any Agreement if:
  • 9.2.1 your ability to accept delivery of the Services is delayed, hindered or prevented by circumstances beyond your reasonable control; or
  • 9.2.2 an order is made or a resolution is passed for your winding up, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to you; or
  • 9.2.3 an order is made for the appointment of an administrator to manage your affairs, business and property, or documents are files with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);or
  • 9.2.4 a receiver is appointed over any of your assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager over you, or if any other person takes possession of or sells your assets; or
  • 9.2.5 you make any arrangement or composition with your creditors, or make an application to a court of competent jurisdiction for the protection of your creditors in any way, or you become bankrupt; or
  • 9.2.6 you cease, or threaten to cease, to trade; or
  • 9.3 Termination of any Agreement, however arising, shall not affect or prejudice any of our accrued rights or the continuation of any provision expressly stated to survive or implicitly surviving termination.

10 General

  • 10.1 Clause headings are inserted for convenience and are to be ignored for the purposes of construction.
  • 10.2 These Terms of Business may only be amended or varied with our written approval of one of our duly authorised officers.
  • 10.3 You confirm and undertake that you have all necessary power, authorisation, consent and approval to validly enter into an Agreement with us.
  • 10.4 You shall not, without our prior written consent, at any time during any Agreement, or for a period of six months after termination of any of them, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of us. Any consent given by us in accordance with clause 10.1 shall be subject to you paying to us a fair amount of compensation which shall be an amount equivalent to the total of six months salary or six months service charges as the case may be, prevailing at the time of termination.
  • 10.5 We shall not be responsible from fulfilling our obligations under any Agreement by reason of any supervening event beyond our control including but not by way of limitation war, national emergency, flood, earthquake, strike or lockout (other than a strike or lockout induced by the party so incapacitated).
  • 10.6 The failure by us to enforce at any time or for any period any one or more of the terms or conditions of under any Agreement shall not be deemed a waiver of them or of the right at any time subsequently to enforce all terms and conditions of any Agreement.
  • 10.7 If any term or provision in these Terms of Business shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law that term or provision or part shall to that extent be deemed not to form part of these Terms of Business and the enforceability of the remainder of these Terms of Busines shall not be affected.
  • 10.8 You acknowledge and agree that in entering into any Agreement that you do not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of any Agreement other than as expressly set out in a quotation.
  • 10.9 We may at any time assign, transfer, charge, sub-contract or otherwise deal in any manner with all or any of our rights or obligations under any Agreement.
  • 10.10 Any Agreement is made for the benefit of the parties to them and (where applicable) their successors and permitted assigns, but are not otherwise intended to benefit, or be enforceable by anyone else.
  • 10.11 Any notice required or authorised to be given by either party under any Agreement to the other party shall be in writing and shall be sent by pre-paid registered or recorded delivery post to the other party at the address stated in such Agreement or such other address as may be specified by the parties by notice to the other from time to time. Any such notice shall operate and be deemed to have been served at the expiration of 2 Business Days after it is posted. In proving such service it shall be sufficient to show that the envelope containing the notice was properly addressed and posted.
  • 10.12 The parties shall use their best efforts to negotiate in good faith and settle any dispute (other than payment for services) that may arise out of or relate to any Agreement. If the dispute is not resolved, the parties will attempt to settle it by mediation. No party may commenceany court proceedings in relation to any dispute arising out of an Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
  • 10.13 All Agreements shall be governed by and construed in accordance with the law of England and each party agrees to submit to the exclusive jurisdiction of the English courts.
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