INTERPRETATION

1.1  In these terms, the following expressions shall have the following meanings:
Buyer – the person whose order for the Goods is accepted by the Seller;
Contract – each binding agreement for the supply of Goods;
Goods – the goods described in the Contract;
Force Majeure Event – an event, circumstance or cause beyond a party's reasonable control including but not limited to industrial disputes (whether or not involving employees of the Seller) or failure or delays by the Seller’s suppliers.
Order – the Buyer’s order for the Goods as set out in the Buyer’s acceptance of the Seller’s quotation given in writing or verbally.
Seller – Surrey Loams Ltd (registered no. 926381) whose registered office is at Oaklands Lodge, Petersfield Road, Monkwood, Hampshire SO24 0HB

CONTRACTS

2.1  These terms shall apply to all supplies of Goods by the Seller to the Buyer to the exclusion of any other terms which the Buyer seeks to impose or incorporate or which are implied by law, trade custom, practice or course of dealing.
2.2  The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these terms. The Buyer is responsible for ensuring that the terms of the Order (including any applicable Goods specification and quantity ordered) are complete, accurate and suitable for the Buyer’s needs .
2.3  No Order of the Buyer shall be binding and no Contract shall arise until the Buyer’s Order is accepted by the Seller expressly in writing or by the Seller despatching any of the Goods. Each Contract shall comprise these terms the Seller’s quotation and any additional terms that are agreed in writing by the parties as applicable.
2.4  If any Contract contains provisions which conflict with these terms, those provisions of the Contract will prevail to that extent, except nothing shall prevail over the exclusions and limitations of the Seller’s liability in these terms unless the provision expressly refers to those exclusions and states that it prevails over them.
2.5  Any samples produced by the Seller and any descriptions or average analyses published in the Seller’s website or in catalogues 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. Additionally, the loam calculator function appearing on the Seller’s website provides estimates of the quantity of Goods required based on certain assumptions and should be used as a guide only and is no replacement for a full site survey, which the Seller may perform for a fee.

PRICE AND PAYMENT

3.1  The price of the Goods shall be as stated on the Seller’s quotation (valid for 30 days from date of the quotation) or as otherwise agreed in writing by the parties.
3.2  The price and other sums payable shall be exclusive of any applicable VAT or other taxes and duties, which shall be payable in addition.
3.3  Payment shall be due without any set off, withholding, deduction, abatement or counter-claim within the payment terms set out in the Seller’s quote or as otherwise agreed in writing irrespective of when the ownership of the Goods passes to the Buyer.
3.4  If the Buyer fails to make any payment when due, without affecting any other rights which it may have, the Seller shall be entitled to charge interest on the overdue amount, at a rate of 2% above the base rate of the Bank of England from time to time, which shall accrue from day to day (both before and after any judgment) from the due date until payment in full is received by the Seller.

DELIVERY AND ACCEPTANCE

4.1  Times for delivery or performance by the Seller are estimates only and, unless otherwise agreed in writing by the parties, time shall not be of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by 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.
4.2  The Seller shall deliver the Goods to the kerbside at the location specified in the Seller’s quotation or as otherwise agreed in writing (Delivery Location) at any time after the Seller notifies the Buyer that the Goods are ready.
4.3  Further to clause 4.2 above, where it is agreed that the Delivery Location will be any place other than at the kerbside, the Buyer agrees that delivery is at its own risk, and agrees to fully indemnify the Seller and its subcontractors and agents for any and all damage to the Buyer’s or a third party’s property caused by the Seller’s or the Seller’s subcontractors and agents in making the delivery.
4.4  Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.5  Upon delivery, the Buyer shall sign the delivery note accompanying the Goods confirming receipt of the ordered quantity of Goods in satisfactory condition. The Buyer shall be deemed to have accepted Goods 3 days after their delivery, or immediately upon the Buyer’s use of the Goods whichever earlier. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the Contract.
4.6  Where the Seller has agreed a time for delivery with the Buyer, in the event that a delay is caused by the Buyer such that the Seller is unable to deliver at the agreed time (Buyer Delay), the following will apply:
(a)  The Seller reserves the right to charge the Buyer a supplemental fee in its full discretion for the time spent waiting (Demurrage Charge);
(b)  where there is a wait of 30 minutes or more, the Seller may decide in its full discretion to leave and deliver on a different date to be agreed with the Buyer; and
(c)  where the Seller is subject to a Demurrage Charge from its suppliers, contractors or any other third party, this will be passed on to the Buyer, who agrees to pay it in full.
4.7  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 a Force Majeure Event, a Buyer Delay 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.
4.8  If the Buyer fails to accept delivery of the Goods 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:
(a)  delivery of the Goods shall be deemed to have been completed at 9:00 am on the third business day after the day on which the Seller notified the Buyer that the Goods were ready; and
(b)  the Seller shall store the Goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).
4.9  If 10 Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, 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.
4.10  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.
4.11  The Seller reserves the right to take photographic evidence of delivery and condition of Goods at delivery.

RISK AND TITLE

5.1  Risk of loss or damage to the Goods shall pass to the Buyer on completion of delivery of the Goods.
5.2  Ownership of the Goods shall pass to the Buyer only on receipt by the Seller of the price in full (and VAT and other taxes and duties payable to the Seller) for those Goods and all other sums then due from the Buyer under all Contracts.
5.3  If the Buyer is overdue in making any payment to the Seller or becomes insolvent, is unable to pay its debts, ceases to trade all or a substantial part of its business, the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or any step is taken by any other person, towards any of the foregoing events, or the Seller reasonably expects any such event, the Seller may terminate the Contract, suspend or cancel any deliveries, and/or the Seller shall be entitled upon demand to the immediate return of all the Goods which remain in the ownership of the Seller and the Buyer irrevocably authorises the Seller to enter any premises to recover them. Recovery of the Goods shall not of itself discharge the Buyer’s liability to pay the whole of the price due for them. 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. Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination.

QUALITY AND USE

6.1  The Seller’s manufacture process includes the mixing of products to create the Goods. The Seller tests its work in progress product during the process and agrees that it shall only supply product once test results (obtained from the STRI or such other specialist soil testing organisation as the Seller may use) confirm that the Goods comply in all material respects with their specification. Accordingly, the Seller warrants that immediately after they are mixed, the supplied Goods conform in all material respects with their specification and the Buyer acknowledges that:
6.1.1  the Goods are inherently susceptible to natural variations in composition and the Seller cannot guarantee particular soil analysis;
6.1.2  any soil analysis information supplied to the Buyer is based on batch testing and is strictly for guidance purposes only (although it shall be evidence of the Goods’ compliance with the warranty set out in clause 6.1);
6.1.3  the Buyer is solely responsible for its selection of the Goods;
6.1.4  Product descriptions relating to the use of the Goods are made in good faith and in general terms and the Seller cannot guarantee the suitability of the Goods for a specific purpose;
6.1.5  the soil analysis reports obtained by the Seller shall be evidence of the Seller’s compliance with clause 6.1 and no other soil analysis reports shall apply to the Goods supplied.
6.2  Subject to clause 6.3, if:
(a)  the Buyer gives notice in writing to the Seller within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1; and
(b)  the Seller is given a reasonable opportunity (but not an obligation) to examine such Goods, the way they have been laid or used and to take samples;
the Seller may, at its option, replace the defective Goods, or refund in full the price of any Goods it agrees are defective.
6.3  The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 6.1 if:
(a)  the defect arises because the Buyer failed to follow industry practice regarding the laying, application or use of the Goods or the maintenance of the grounds in accordance with grounds keeping industry standards and/or practice.
(b)  the Goods are within the tolerances set out in the specification.
And the Buyer acknowledges that, due to the nature of the Goods, the warranty set out in clause 6.1 applies at the time of mixing and not the time of delivery or any other point in time.

6.4  Except as provided in this clause 6, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.

WARRANTIES AND LIABILITY

7.1  The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.2  Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a)  death or personal injury caused by negligence;
(b)  fraud or fraudulent misrepresentation;
(c)  breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d)  defective products under the Consumer Protection Act 1987 .
7.3  Subject to clause 7.2:
(a)  the Seller’s total liability to the Buyer under the Contract for damage or loss to physical property other than damage or loss of the Goods shall not exceed the amounts recovered by the Seller under its then subsisting insurance;
(b)  the Seller’s total liability to the Buyer for all other liability under the Contract shall not exceed 120% of the price payable under the Contract;
(c)  the Seller’s liability for the following types of loss are wholly excluded:
(i)  any loss of or damage to profit, revenue, anticipated savings, data or use, cost of re-laying or re-installing defective Goods; or
(ii)  any indirect or consequential loss or damage; except to the extent that such loss or damage is a consequence of damage or loss to physical property of the Buyer other than the Goods and is recovered by the Seller under its then subsisting insurance.
7.4  Where the Contract is a consumer transaction the statutory rights of the Buyer shall not be affected by the Contract.
7.5  The Seller shall not be liable to the Buyer for any claim unless made with reasonable details in writing to the Seller without unreasonable delay and in any event no later than 3 months, or such longer period as may be reasonable in the circumstances, after the date the claimable event first came (or ought reasonably to have come) to the Buyer’s notice.

FORCE MAJEURE

8.1  The Seller shall have the right to suspend delivery and/or cancel or reduce the volume of the Goods to be supplied and shall not be liable in any way for loss, damage or expense arising directly or indirectly from this, or any other failure or delay in the Seller’s performance of the Contract, to the extent that this has been caused by any circumstance beyond the Seller’s reasonable control, including industrial disputes (whether or not involving employees of the Seller) or failure or delays by the Seller’s suppliers.

ENTIRE AGREEMENT

9.1  Assignment and other dealings.
(a)  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.
(b)  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.
9.2  Entire agreement.
(a)  The 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.
(b)  Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in 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.
9.3  Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.4  Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
9.5  Severance. 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 11.6 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.
9.6  Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered personally, or sent by pre-paid recorded delivery or by commercial courier, to each party required to receive the notice at its registered address or as otherwise specified by the relevant party by notice in writing to each other party. A notice shall be deemed to have been duly received at the time of delivery, if delivered personally or by courier, or 2 business days after posting.
9.7  Third party rights. 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.
9.8  Governing law and jurisdiction. The Contract shall be construed in accordance with the law of England and Wales. The parties submit to the jurisdiction of the Courts of England and Wales.