Terms & Conditions
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TERMS AND CONDITIONS
1.1 In these terms and conditions (“Conditions”) the words in bold on the signature page shall have the meanings attributed to them. In addition:
“Delivery Point” means the place where delivery of the Equipment is to take place under Condition 5
“Proposal” means the proposal for the supply of the Equipment as set out in Appendix A
“Services” means such services as specified in Appendix C
“Specification” means the specification of the Equipment set out in the User Manual
“User Manual” means the operating and user manual for the Equipment supplied by CMB to the Buyer as may be updated from time to time by CMB.
1.2 In these Conditions:
1.2.1 references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced;
1.2.2 references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires; and
1.2.3 headings will not affect the construction of these Conditions.
2 APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 The parties acknowledge to each other that they have not relied upon any statement or representation by the other when entering into the Contract unless expressly set out in the Contract or incorporated pursuant to Condition 2.3.
2.3 Any variation to the Contract and any representations about the Equipment shall have no effect unless expressly agreed in writing and signed by a director or authorised representative of CMB.
3 JOB SITE
3.1 The Buyer shall ensure that the Job Site is prepared in accordance with the Proposal prior to the estimated delivery date for the Equipment given by CMB to the Buyer.
3.2 CMB may access the Job Site prior to delivery of the Equipment so as to enable proper performance of the Services and the installation of the Equipment.
3.3 The Buyer shall make known to CMB in writing any obstacles on the Job Site of which it is aware which will or may limit or prevent CMB’s proper performance of the Services and the installation of the Equipment.
4.1 The description of the Equipment shall be as set out in the Proposal.
4.2 All drawings, descriptive matter, specifications and advertising issued by CMB and any descriptions or illustrations contained on CMB’s website or in CMB’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment described in them. They do not form part of the Contract.
5.1 Unless otherwise agreed in writing by CMB, delivery of the Equipment shall take place CIF, Incoterms 2000.
5.2 The Buyer shall not refuse to take delivery of the Equipment and will take delivery of the Equipment within 7 days of CMB giving it notice that the Equipment is ready for delivery.
5.3 If for any reason the Buyer will not accept delivery of the Equipment or any part thereof, or CMB is unable to deliver the Equipment on time because of the acts or omissions of the Buyer:
5.3.1 risk in the Equipment will pass to the Buyer (including for loss or damage caused by CMB’s negligence);
5.3.2 the Equipment will be deemed to have been delivered; and
5.3.3 CMB may store the Equipment until collected by the Buyer and the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
6 NON-DELIVERY OR LATE DELIVERY
6.1 Time of delivery shall not be of the essence and any delivery date is an estimate only. CMB shall use all reasonable endeavours to avoid late deliveries. The Buyer shall have the right to cancel any order if delivery is more than 60 days late and CMB shall refund to the Buyer any monies already paid to CMB in respect of the Equipment, save where such delay arises as a result of a failure by the Buyer to fully comply with its obligations set out in Condition 3. This Condition 6.1 sets out the Buyer’s only remedy for such delay.
6.2 CMB shall not be liable for any non-delivery of the Equipment (even if caused by CMB’s negligence) unless written notice is given to CMB within 7 days of the date when the Equipment would in the ordinary course of events have been received.
6.3 Any liability of CMB for non-delivery of the Equipment shall be limited to, at its discretion, replacing the Equipment within a reasonable time, issuing a credit note at the pro rata Contract rate against any invoice raised for the Equipment or a refund of the purchase price paid.
7.1 If CMB and the Buyer have agreed that the Buyer shall install the Equipment at the Job Site, the Buyer shall undertake such work in accordance with the time frame set out in the Proposal and the requirements set out in the User Manual using suitable qualified and experienced personnel.
7.2 After installation of the Equipment, CMB shall give the Buyer at least 7 days’ prior written notice (or such shorter notice as the parties may agree) of its intention to carry out tests to demonstrate the capability of the Equipment to provide the functionality set out in the Specification. The Buyer shall provide at its own cost and expense such material as CMB deems reasonably necessary and suitable to demonstrate such capability to the reasonable satisfaction of the Buyer. The Buyer and CMB shall attend such tests on such date notified to the Buyer by CMB (“the Testing Date”).
7.3 On the Testing Date, the Buyer shall process, in the presence of CMB, the material referred to in Condition 7.2 using the Equipment. CMB shall, if required by the Buyer, give the Buyer’s personnel all reasonable assistance in processing such test data.
7.4 The Buyer shall accept the Equipment immediately after the Equipment has processed such material by achieving the expected results and shall forthwith confirm the same in writing to CMB. The Equipment shall not be deemed to have incorrectly processed such material by reason of any failure to provide any functionality not set out in the Specification.
7.5 If the Equipment fails to the process such material correctly then repeat tests shall be carried out in accordance with Conditions 7.2 to 7.4 inclusive. If the Equipment has failed to pass repeat tests by the end of the period of 3 months from the commencement of commissioning under Condition 7.2, CMB may at its sole discretion elect to terminate the Contract and reimburse the Buyer with such monies paid to CMB in respect of the Equipment as CMB deems appropriate, taking into account all circumstances including, without limitation, the extent to which:
7.5.1 CMB has performed its obligations set out in the Contract at the date of such termination;
7.5.2 the failure of the Equipment to pass such tests is attributable to any failure of the Buyer to fully comply with its obligations under the Contract.
This Condition sets out the Buyer’s sole remedy in respect of such termination.
7.6 Notwithstanding anything else set out in this Condition, CMB shall be entitled (provided that it has complied with its obligations under this Condition) to serve written notice on the Buyer to identify any part of the functionality set out in the Specification which the Equipment does not fulfil. If the Buyer fails to identify in writing to CMB within 14 days after receipt of such notice any part of such functionality which the Equipment does not fulfil, then the Buyer shall be deemed to have accepted the Equipment.
7.7 If at any time the Buyer commences live running of the whole or any part of the Equipment (as distinct from the testing set out in this Condition) then the Buyer shall be deemed to have accepted the Equipment.
8.1 CMB shall perform the Services. The Buyer acknowledges that time of performance of the Services shall not be of the essence of the Contract and CMB shall not be liable for any delay in performance or non-performance of the Services to the extent that such delay or non-performance is attributable to the acts or omissions (whether negligent or otherwise) of the Buyer.
8.2 At Buyer’s written request, CMB may perform services relating to or in connection with the Equipment which are additional to the Services on a time and materials basis at CMB’s then current rates.
9.1 The Buyer shall maintain the Equipment with suitably qualified individuals, only in accordance with such instructions and recommendations relating to the maintenance of the Equipment as are detailed in the User Manual together with any supplementary instructions as may from time to time be advised in writing by CMB.
10 RISK AND TITLE
10.1 The Equipment is at the risk of the Buyer from the time of delivery.
10.2 Ownership of the Equipment shall not pass to the Buyer until CMB has received in full (in cash or cleared funds) all sums due to it in respect of:
10.2.1 the Equipment; and
10.2.2 all other sums which are or which become due to CMB from the Buyer on any account.
10.3 Until ownership of the Equipment has passed to the Buyer, the Buyer must:
10.3.1 hold the Equipment on a fiduciary basis as CMB’s bailee;
10.3.2 store the Equipment (at no cost to CMB) separately from all other products of the Buyer or any third party in such a way that they remain readily identifiable as CMB’s property;
10.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment;
10.3.4 maintain the Equipment in satisfactory condition and keep them insured on CMB’s behalf for their full price against all risks to the reasonable satisfaction of CMB. On request the Buyer shall produce the policy of insurance to CMB; and
10.3.5 hold the proceeds of the insurance referred to in Condition 10.3.4 on trust for CMB and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
10.4 The Buyer’s right to possession of the Equipment shall terminate immediately if:
10.4.1 the Buyer (being an individual) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer in any jurisdiction; or
10.4.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between CMB and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
10.4.3 the Buyer encumbers or in any way charges the Equipment; or
10.4.4 anything analogous to the foregoing occurs in any other jurisdiction.
10.5 CMB shall be entitled to recover payment for the Equipment notwithstanding that ownership of the Equipment has not passed from CMB.
10.6 The Buyer grants CMB, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is may be stored in order to inspect it, or, where the Buyer’s right to possession has terminated, to recover it.
11.1 The price for the Equipment and Services is as set out in the Proposal.
11.2 The price for the Equipment shall be exclusive of any value added tax and, save to the extent specified to the contrary in the Proposal, all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Equipment.
12.1 The Buyer shall pay for the Equipment in accordance with the Payment Terms.
12.2 Time for payment shall be of the essence.
12.3 All payments will be in pounds sterling unless CMB states otherwise.
12.4 No payment shall be deemed to have been received until CMB has received cleared funds.
12.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by CMB to the Buyer.
12.6 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to CMB, CMB shall be entitled:
12.6.1 to terminate the Contract;
12.6.2 to cease performance of the Services and all other services being performed or to be performed by CMB, whether pursuant to the Contract or otherwise;
12.6.3 to appropriate any payment made by the Buyer to such of Equipment (or the goods supplied under any other contract between the Buyer and CMB) as CMB may think fit (notwithstanding any purported appropriation by the Buyer); and
12.6.4 to charge interest to the Buyer on such sum at the rate of 4 per cent per annum above the BBA compiled London Interbank Offered Rate in force from time to time from the date the payment became due until actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same). Interest shall be calculated daily based upon a 365 day year.
13.1 CMB warrants that it will perform the Services with reasonable care and skill by suitably trained, qualified and experienced personnel.
13.2 CMB warrants that (subject to the other provisions of the Contract) for the Warranty Period, the Equipment will:
13.2.1 conform in all material respects to the Specification; and
13.2.2 be free from material defects in materials and workmanship.
13.3 CMB shall not be liable for a breach of any of the warranties in Condition 13.2 unless:
13.3.1 the Buyer gives written notice of the defect to CMB, and (if the defect is as a result of damage arising during transit at the risk of CMB) to the carrier, within 14 days of the time when the Buyer discovers or ought to have discovered the defect; and
13.3.2 CMB is given a reasonable opportunity after receiving the notice of examining such Equipment.
13.4 If the Equipment does not comply with the warranties set out in Condition 13.2 (“Defective Equipment”) CMB shall at its cost and expense and discretion either:
13.4.1 repair or replace the Defective Equipment; or
13.4.2 give a credit or refund for the price paid by the Buyer for such Defective Equipment after deduction of an amount equal .
13.5 CMB shall not be liable for a breach of any of the warranties in Condition 13.2:
13.5.1 to the extent that it is attributable to further use of such Equipment after giving notice pursuant to Condition 13.3.1; or
13.5.2 if the defect arises because the Buyer failed to follow the instructions relating to the operation, use and maintenance of the Equipment (and where the Buyer installs the Equipment, instructions as to installation of the Equipment) as are set out in the User Manual;
13.5.3 that are attributable to fair wear and tear, abuse, improper use or use in an environment or for a purpose for which the Equipment was not designed or intended by CMB;
13.5.4 if the Buyer or a third party alters or repairs the Equipment without the written consent of CMB; or
13.5.5 to the extent that it is attributable to any third party materials including any equipment to which the Equipment is incorporated which is not provided by CMB.
13.6 CMB shall upon request by the Buyer correct errors, defects or faults in the Equipment notwithstanding that such error or fault:
13.6.1 falls outside the Warranty Period; or
13.6.2 is one for which CMB is not liable pursuant to Conditions 13.2, 13.3 or 13.5
and shall in each case charge the Buyer for such on a time and materials basis, in accordance with CMB’s then current charges.
13.7 If CMB complies with Condition 13.3 it shall have no further liability for a breach of any of the warranties in Condition 13.3 in respect of the Equipment.
13.8 The Equipment or parts thereof replaced will belong to CMB and any repaired or replacement Equipment will be guaranteed on these terms for the unexpired portion of the Warranty Period.
13.9 CMB’s decision as to whether the Equipment is in breach of the warranties set out in Condition 13.2 is final.
13.10 The failure of the Services and/or the Equipment to comply with any of the warranties set out in Conditions 13.1 and 13.2 shall not entitle the Buyer in any circumstances to withhold payment of any sums that may from time to time be due to CMB under the Contract or otherwise.
14 INTELLECTUAL PROPERTY
14.1 The Buyer acknowledges that any reputation in any trade marks affixed or applied to the Equipment and the User Manual shall accrue to the sole benefit of CMB or any other owner of the trade marks from time to time.
14.2 The Buyer shall not remove from, cover up or alter any copyright or trade mark notices or confidential or proprietary legends or identification on the Equipment and the User Manual.
14.3 The provisions of this Condition 14 shall survive the termination or expiry of the Contract.
15 LIMITATION OF LIABILITY
15.1 Save as set out elsewhere in the Contract, the following provisions set out the entire financial liability of CMB (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
15.1.1 any breach of the Contract; and
15.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
15.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 (as amended)) are, to the fullest extent permitted by law, excluded from the Contract.
15.3 Nothing in the Contract excludes or limits the liability of CMB for death or personal injury caused by CMB’s negligence or fraudulent misrepresentation.
15.4 Subject to Condition 15.3, CMB shall not be liable to the Buyer for:
15.4.1 any indirect or consequential, special or punitive loss, damage, costs or expenses;
15.4.2 loss of profit;
15.4.3 loss of business;
15.4.4 loss of revenue; or
15.4.5 depletion of goodwill.
15.5 Subject to Condition 15.3, CMB’s total liability to the Buyer under or connected with the Contract for:
15.5.1 damage to the Buyer’s tangible property resulting directly from CMB’s negligence or that of its employees shall not exceed £2,000,000.00 for any one event or series of connected events;
15.5.2 any other loss or damage not covered by Condition 15.5.1 and which arises directly out of CMB’s negligence shall not exceed £2,000,000.00 for any one event or series of connected events;
15.5.3 any other direct loss not covered by Conditions 15.5.1 or 15.5.2 shall not exceed the Price.
15.6 The limits in Conditions 15.5.1 to 15.5.3 inclusive are based on CMB’s insurance cover and ability to compensate. The limits may be increased if requested but shall be subject to CMB securing suitable cover and may require an adjustment to the price payable for the Equipment to reflect any increased premiums.
15.7 The provisions of this Condition shall survive the expiry or termination of the Contract.
16.1 CMB may sub-contract the manufacture or production of the Equipment and the performance of the Services. CMB agrees that it shall be responsible for the actions or omissions of any sub-contractor used by it in connection with the Equipment or with satisfying any of CMB's responsibilities under the Contract.
17.1 The Buyer shall not be entitled to assign, transfer or dispose of any right, obligation or interest in or arising out of the Contract or any part of it without the prior written consent of CMB.
17.2 CMB may assign the Contract or any part of it to any other person, firm or organisation.
18 FORCE MAJEURE
18.1 A party shall not have any liability for any loss or damage if its performance of any obligations under the Contract (other than non-payment of amounts that are due and payable) is delayed, hindered or prevented by any cause beyond its reasonable control, including, without limitation, fire, storm, flood, earthquake, accident, adverse weather conditions, explosions, Acts of God, war, governmental controls, restrictions or prohibitions, strikes, lock-outs, industrial action, employment dispute, protests, traffic congestion, vandalism, interruptions in communications or power supply and mechanical breakdown, failure or malfunction of computer systems. In the event of such delay, hindrance or prevention, such party shall be entitled to postpone delivery or performance by the duration of interference plus a reasonable start-up time thereafter, or to terminate the Contract in its entirety or partially, insofar as it has not been performed without incurring any liability for non-performance.
19 TERMINATION OF CONTRACT
19.1 CMB shall have the right to terminate the Contract forthwith on notice to the Buyer in any of the following events,:
19.1.1 if the Buyer commits a material breach of any of the terms of the Contract and fails to remedy the same within 7 days of being notified of the breach;
19.1.2 immediately upon the occurrence of the events in Condition 10.4, or if any material or significant part of the Buyer's undertaking, property, or assets shall be intervened in, expropriated, or confiscated by action of any government.
19.2 CMB may terminate the Contract if the Buyer fails to pay any sum as it falls due, unless subject to a bona fide dispute and provided the undisputed amount has been paid.
20 CONSEQUENCES OF TERMINATION
20.1 On the termination of the Contract for any reason:
20.1.1 CMB shall not be obliged to supply the Equipment ordered by the Buyer unless already paid for;
20.1.2 CMB shall cease performance of its obligations under the Contract save to the extent that they survive the termination of the Contract, whether expressly or by implication; and
20.1.3 all payments payable to CMB under the Contract shall become due immediately upon termination of the Contract despite any other provision.
20.2 The termination of the Contract shall not affect the respective rights and liabilities of each of the parties thereto which accrued prior to such termination nor any provisions which either expressly or impliedly are to remain in operation after termination.
21.1 Each right or remedy of CMB under the Contract is without prejudice to any other right or remedy of CMB whether under the Contract or not.
21.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
21.3 Failure or delay by CMB in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
21.4 Any waiver by CMB of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
21.5 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
22.1 The Buyer undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of CMB which may have or may in future come to its knowledge and the Buyer shall prevent the publication or disclosure of any confidential information concerning such matters.
23.1 Subject to Condition 23.3, all disputes arising out of or in connection with the Contract shall be referred to be finally resolved by arbitration in London and shall be decided pursuant to the Rules of the London Court of International Arbitration which Rules are deemed to be incorporated by reference into this Condition insofar as they do not conflict with the express provisions hereof. The proceedings shall be conducted in the English language and the tribunal shall consist of a sole arbitrator.
23.2 English Law shall govern the Contract.
23.3 CMB has the right to pursue any overdue amount (together with interest) as well as protecting its legitimate interest in the English courts or any other courts of competent jurisdiction and the Buyer submits to the non-exclusive jurisdiction of such court and waives any right to object to the jurisdiction of those courts for this purpose. Judgment may be enforced in any court of competent jurisdiction.
24.1 All communications between the parties about the Contract must be in writing and delivered by hand or sent by pre-paid first class post (or registered airmail post if sent overseas), by facsimile transmission or by e-mail:
24.1.1 (in the case of communications to CMB) to its registered office or such changed address as shall be notified to the Buyer by CMB; or
24.1.2 (in the case of communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to CMB by the Buyer.
24.2 Communications shall be deemed to have been received:
24.2.1 if sent by pre-paid inland first class post, 4 days after posting (exclusive of the day of posting);
24.2.2 if sent by registered airmail, 7 days after posting (exclusive of the day of posting);
24.2.3 if delivered by hand, on the day of delivery;
24.2.4 if sent by facsimile transmission or e-mail on a working day (in England) prior to 4.00 p.m., at the time of transmission and otherwise on the next working day provided the sender can show satisfactory transmission.