Terms & Conditions

TERMS AND CONDITIONS FOR THE SUPPLY OF MATERIALS AND/OR SERVICES

Where the customer is a consumer, the customer’s attention is drawn to the following clauses:

2 (Formation of contract)
4 (Delivery of materials)
7 (Supply of services)
8 (Price, charges and payment)
12 (Limitation of liability)
13 (Termination)
16 (Consumer cancellation rights)

These Terms set out the basis that the Company will provide Materials and/or Services to its Customers, and this introductory section is intended to provide the Company’s Customers with further information regarding those Materials and/or Services.

Importantly, these Terms adopt the use of defined terms, which are used throughout these Terms and are as set out in clause 1, immediately below. When reviewing these Terms, the Customer ought to cross-reference any defined term (which will be capitalised, such as “Consumers” for example) with the relevant definition.

The Company acknowledges that, in entering into the Contract, the Customer will be either a Consumer or a Business. In some areas of these Terms, the Customer will have differing rights and obligations depending on whether it is entering into the Contract as a Consumer or a Business. These Terms will clearly identify which clauses apply to only Businesses, and which clauses only apply to Consumers. Where no such indication is made, the relevant clause shall apply to both Businesses and Consumers. Various clauses also contain further explanatory content for the benefit of Consumers.

In the event that any Consumer has any queries regarding its legal status, which of these Terms apply to it or the implications of the Contract being formed, then it must raise the same prior to entering into the Contract. Clause 17.3 sets out how the Consumer can correspond with the Company.

1. DEFINITIONS AND INTERPRETATION

The following definitions and rules of interpretation apply in these Terms.

1.1 DEFINITIONS

“Applicable Laws” means primary and secondary legislation, retained EU law (as defined in section 6(7) of the European Union (Withdrawal) Act 2018), regulations, regulatory policies, guidelines or industry codes which apply from time-to-time.
“Business” means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England and Wales.
“Business Hours” means the hours between 9:00am and 5:00pm on a Business Day.
“the Company” means Equestrian Surfaces Ltd, a company registered in England and Wales under company number 02075963 and whose registered office is at Phoenix Works Phoenix Way, Smallshaw Industrial Estate, Burnley, Lancashire, BB11 5SX.
“Consumer” means an individual or individuals acting for purposes which are wholly or mainly outside that individuals trade, business craft or profession.
“Contract” means the contract between The Company and the Customer for the supply of Materials and/or Services in accordance with these Terms and the Additional Terms (if any).
“Customer” and “You” means the person firm or company who the Company wishes to provide Materials and/or Services as detailed in the Quotation, whether as a Business or a Consumer.
“DPA” means the Data Protection Act 2018 (and any regulations made thereunder).
“Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR (as defined in section 3(10) (and as supplemented by section 205(4)) of the DPA; the DPA; the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
“Document” includes, without limitation, in addition to any document in writing, any data, manual, drawing, map, plan, diagram, design, picture or other image, computer programme, video, tape, disk or other device or record embodying information in any form.
“Equipment” all equipment, including tools, systems, cabling or facilities provided by the Company, its sub-contractors or any third party acting on its instructions which is used directly or indirectly in the supply of the Materials and/or Services, including any items provided on loan to the Company.
“Force Majeure Event” events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic, any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident and in the case of the Company a failure of its suppliers or subcontractors.
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business anddomain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Location” the location set out in the Quotation, Order Confirmation or such other location as the parties may agree in writing where the Materials are to be delivered and/or the site where performance of any Services is to take place.
“Loss” actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and “Losses” shall be construed accordingly.
“Materials Specification” means any specification for the Materials in the Quotation, or if none the Order Confirmation.
“Materials” means the materials (or any part of them) set out in the Quotation or if none the Order Confirmation.
“Order Confirmation” means an order confirmation document, or other written acceptance sent by The Company to the Customer, agreeing to fulfil an Order.
“Order” means the Customer’s written order for the supply of Materials or Services or Materials and Services as set out in the Customer’s purchase order form.
“Price“ has the meaning in clause 8.1.
“Quotation” means the documents issued by the Company which details the Materials and/or Services to be supplied to the Customer including, the Price, and any Materials and/or Services Specification.
“Services Specification” means the description or specification for the Services set out in the Quotation, including any related Documents.
“Services” means the Services (if any), to be supplied by the Company to the Customer as set out in the Quotation together with any other services which the Company provides or agrees to provide to the Customer.
“Terms” means these Terms and Conditions, as amended from time to time in accordance with clause 17.9, including any Additional Terms.
“The Regulations” has the meaning given to it in clause 16.1.

1.2 INTERPRETATION

1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision:
- (a) is a reference to it as amended or re-enacted; and
- (b) includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes email but not fax.

2. FORMATION AND BASIS OF THE CONTRACT – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE

2.1 These Terms 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.
2.2 The Order constitutes an offer by the Customer to enter into a Contract in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Quotation, the Order, and any applicable Specification are true, complete and accurate, and by raising an Order warrants that this is the case in every respect.
2.3 The Company may reject the Order at its absolute discretion, and for any reason whatsoever and the Order shall only be deemed to be accepted at the earlier of when the Company;
- 2.3.1 commences with the supply of the Materials and/or performance of the Services; or
- 2.3.2 issues an Order Confirmation, at which point the Contract shall come into existence.
2.4 Any samples, drawing, descriptive matter, or advertising issued by the Company and any illustrations or descriptions of the Materials and/or Services contained in the Company’s catalogues, 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 or their substance and character. They shall not form part of the Contract nor have any contractual force and this Contract is not in whole or part a sale by sample.
2.5 All of these Terms shall apply to the supply of both Materials and/or Services except where application to one or the other is specified.
2.6 Any Quotation shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue provided that the Company has not previously withdrawn it.
2.7 The Company reserves the right to amend the Materials Specification and/or the Services Specification (as the case may be) if required by any Applicable Laws, and the Company shall notify the Customer in any such event.

3. EQUIPMENT AND DOCUMENTS

3.1 All Equipment and Documents supplied by the Company to the Customer shall (unless otherwise purchased by the Customer), at all times, be and remain (as between the Company and the Customer) the exclusive property of the Company.
3.2 The Customer hereby warrants and undertakes to keep any Equipment and/or Documents in safe custody and insured at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.

4. DELIVERY OF THE MATERIALS

4.1 The quantity and description of the Materials shall be as set out in the Quotation, save as modified by any applicable Materials Specification.
4.2 The Company shall ensure that each delivery of the Materials following the completion of the Services is accompanied by a delivery note, which shows the date of the Contract, the Contract number, the type and quantity of the Materials (including the code number of the Materials, where applicable), special storage instructions (if any) and, if the Contract is being delivered by instalments, the outstanding balance of Materials remaining to be delivered.
4.3 The Company shall notify the Customer on the delivery note if it requires the Customer to return any packaging materials to the Company. The Customer shall make any such packaging materials available for collection at such times as the Company shall reasonably request and shall be solely responsible for the safekeeping of the packaging materials until they have been collected by the Company.
4.4 Unless it has been agreed in writing that the Customer shall collect the Materials, (in which case the Customer shall collect the Materials within 7 Business Days of the Company giving notice that the Materials are ready for collection), the Company shall deliver the Materials to the Location in an articulated tipper vehicle at any time after the Company notifies the Customer that the Materials are ready.
4.5 The Customer shall provide the following in order to ensure the prompt discharge of the delivery of the Materials:
- 4.5.1 an authorised representative over the age of 18 to accept the Materials and to sign the electronic POC or delivery note. Any signature must be legible and accompanied with a legible printed name;
- 4.5.2 all timely appropriate instructions concerning the delivery and the Location;
- 4.5.3 a safe and proper route from a metalled highway to the agreed Location and all applicable documents (such as required licences, consents and permissions where applicable);
- 4.5.4 health and safety instructions to any person(s) who may be working or present at the Location;
- 4.5.5 safe access to the Location to the point of discharge of the Materials including manoeuvring space for a 44 tonnes delivery vehicle, and such facilities as are reasonably required by the Company to provide the Services; and
4.5.6 suitable hardstanding or other hard ground (not a field) for unloading of the Materials from the delivery vehicle.

Failure to comply with this clause 4.5 may result in the Company refusing to make delivery of the Materials and additional charges may be incurred which the Customer shall be solely responsible for.

4.6 Given the nature of the Materials, the Customer will be deemed to have accepted the Materials as being in
accordance with the Contract on the earliest to occur of the following:
- 4.6.1 upon collection from the Company’s premises; or
- 4.6.2 signature of the delivery note or the electronic PDA provided by the delivery driver following completion of unloading of the Materials at the Location.

IF YOU ARE A BUSINESS

4.7 Any dates quoted for delivery of the Materials are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for:
- 4.7.1 any delay in delivery of the Materials that is caused by a Force Majeure Event; or
- 4.7.2 the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Materials.
4.8 Subject to the other provisions of these Terms the Company shall not be liable for any direct, indirect or consequential Loss caused directly or indirectly by any delay in the delivery of the Materials, nor shall any delay entitle the Customer to terminate or rescind the Contract.
4.9 If the Company fails to deliver the Materials (or any part of them), its liability shall be limited to:
- 4.9.1 replacing the Materials within a reasonable time or issuing a credit note against any invoice issued for such Materials;
- 4.9.2 or a refund for any payment of the Price made for these Materials.
  The Company shall have no liability for any failure to deliver the Materials to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions for the Materials or any over relevant instruction related to the supply of the Materials.
4.10 If for any reason the Customer does not accept delivery of any of the Materials or the Company is unable to deliver due to breach by the Customer of clause 4.5 when the Materials arrive and available for discharge at the Location:
- 4.10.1 the Customer shall be liable to the Company for any Loss incurred by the Company in attempting delivery; and
- 4.10.2 the Company may invoice the Customer on the date the Materials were notified as ready for delivery.
4.11 If the Customer fails to collect the Materials or accept delivery of the Materials at the Location within 7 Business Days of the Company notifying the Customer that the Materials are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Materials the Company may terminate the Contract and resell the Materials.
4.12 The Company may deliver the Materials by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract and invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.13 If the Company delivers to the Customer a quantity of Materials of up to 5% more or less than the quantity accepted by the Company, the Customer shall not be entitled to object to or reject the Materials or any of them by reason of the surplus or shortfall and shall pay for such Materials on a pro rata basis to the Price.
4.14 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

IF YOU ARE A CONSUMER

4.15 The Order Confirmation will contain a delivery date for the Materials. Occasionally deliveries may be affected by Force Majeure Event – see condition 15.3 for the Company’s responsibility if this happens.
4.16 (Subject to clause 5.3) if the Company fails to deliver any of the Materials by the delivery date quoted, You may cancel Your Order straight away if:-
- 4.16.1 You told the Company before it accepted Your Order that delivery of the Materials was essential by a delivery deadline;
- 4.16.2 the Company has refused to deliver the Materials to You.
4.17 If You do not wish to cancel Your Order straight away, You can give the Company a new deadline date for delivery which must be reasonable and on a Business Day and You may cancel Your Order if the Company does not meet the new deadline date.
4.18 If the Customer does choose to cancel the Order for late delivery under condition 4.166.1, then if the Materials have been delivered to the Customer, the Customer must allow the Company to collect them, and the Company will pay the costs of this. After the Customer cancels the Order the Company will refund any sums the Customer has paid to the Company for the cancelled Materials and their delivery.

5. QUALITY AND QUANTITY OF MATERIALS

5.1 The Company warrants that on delivery, the Materials shall (subject to clause 2.7) conform with their description in the Quotation and any applicable Materials Specification in all material respects.
5.2 If for any reason beyond the Company’s control (including but not limited to the occurrence of a Force Majeure Event), it is unable to supply particular Material(s), the Company will notify the Customer of such. The Company will use reasonable endeavours to replace it with an item of equivalent standard and value.
5.3 The Company shall not be liable for any non-delivery (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 5 Working Days of the date when the Company notified the Customer that the Materials were ready to be delivered.

IF YOU ARE A BUSINESS

5.4 The Company gives no warranty that Materials will be fit for any particular purpose unless the Company has been first advised in writing of all relevant factors relating to the purpose and the Company has confirmed in writing (signed by a Director) that the Materials will be suitable for that purpose.
5.5 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 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
5.6 Subject to clause 5.7, the Company shall, at its option replace at the Location, or issue a credit note against any invoice raised or refund the element of the Price actually paid by the Customer for those Materials which fail to comply with the warranty in clause 5.1 (or if applicable clause 5.4) but only if:
- 5.6.1 the Customer gives notice in writing within 3 Working Days of collection of the Materials by the Customer or delivery of the Materials to the Location that some or all of the Materials do not comply with the warranty set out in clause 5.1 (or 5.4 if applicable);
- 5.6.2 the Company is given a reasonable opportunity of examining such Materials (and or taking a sample from them); and
- 5.6.3 the Customer (if asked to do so by the Company) returns such Materials (or a sample) to the Company’s place of business at the Company’s cost or permits the Company to collect such Materials.
5.7 The Company shall not be liable for the Materials’ failure to comply with the warranty in clause 5.1 (or if applicable clause 5.4) if:
- 5.7.1 the Customer makes any further use of Materials in the allegedly defective consignment of Materials after giving a notice in accordance with clause 5.6.1;
- 5.7.2 the defect arises as a result of wilful damage, negligence on the part of the Customer, or abnormal storage or extreme weather or other abnormal working conditions for the Materials; or
- 5.7.3 the Materials differ from the Materials Specification as a result of clause 2.7.
5.8 Except as provided in this clause 5, the Company shall have no liability to the Customer in respect of the Materials’ failure to comply with the warranty set out in clause 5.1(or if applicable clause 5.4). The obligations of the Company under clause 5.1 shall for the avoidance of doubt not oblige the Company to make good any other loss or damage which may have been suffered or incurred by the Customer as a result of the Company’s failing to have supplied the Materials in accordance with clause 5.1.
5.9 These Terms shall apply to any replacement Materials supplied by the Company.

6. TITLE AND RISK

6.1 The risk in the Materials shall pass to the Customer on completion of delivery at the Location.
6.2 Title to the Materials shall only pass to the Customer once the Company receives payment in full (in cash or cleared funds) for the Materials and/or Services and any other materials that the Company has supplied to the Customer in respect of which payment has become due.

IF YOU ARE A BUSINESS

6.3 Until title to the Materials has passed to the Customer, the Customer shall:
- 6.3.1 hold the Materials as the Company’s bailee;
- 6.3.2 store the Materials at no cost to the Company held by the Customer so that they remain readily identifiable as the Company’s property and in satisfactory condition;
- 6.3.3 not remove, deface or obscure any notice, mark or packaging on or relating to the Materials which identifies them at being the property of the Company;
- 6.3.4 keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
- 6.3.5 notify the Company immediately if it becomes subject to any of the events listed in clause 13.1.3 to clause 13.1.5;
- 6.3.6 give the Company such information relating to the Materials as the Company may reasonably require from time to time; and
- 6.3.7 give the Company or its authorised representative access to the place where the Materials are located.
6.4 If before title to the Materials passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1.3 to clause 13.1.5, then, without limiting any other right or remedy the Company may have the Company may at any time:
- 6.4.1 require the Customer to deliver up all Materials in its possession; and
- 6.4.2 if the Customer fails to do so promptly, the Company its agent or employees may enter any premises of the Customer or of any third party where the Materials are stored in order to recover them.
- 6.5 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 6 shall remain in effect.

7. SUPPLY OF SERVICES

7.1 Unless the Company and the Customer has agreed as set out in the Quotation that the Contract shall include the supply of Services relating to the installation of the Materials, the Customer shall be solely responsible for the installation of the Materials and the Contract shall be for supply of Materials only.
7.2 Where it has been agreed as set out in the Quotation that the Company is responsible for the supply of the Services relating to the installation of the Materials and/or the supply of any other Services then the provisions contained in this clause 7 shall also apply.

IF YOU ARE A CONSUMER

7.3 The Company warrants that (subject to the other provisions of these Terms) the Services shall be supplied with reasonable care and skill and in accordance with the Company’s obligations under the Consumer Rights Act 2015.
7.4 The Company will perform the Services by the time or within the period set out within the Quotation.

IF YOU ARE A BUSINESS

7.5 The Company shall use reasonable endeavours to provide the Services at the Location in accordance with the Services Specification and the Contract in all material respects.
7.6 The Company shall use reasonable endeavours to meet any projected dates, timescales and deadlines that are associated with the performance of the Services and connected delivery of any Materials, however time for completion and delivery shall not be of the essence under the Contract.

IF YOU ARE A BUSINESS OR CONSUMER

7.7 The Company reserves the right to amend the Service Specification if required by any Applicable Law from time to time in force, where to do so would not have an adverse effect on the Customer.
7.8 Where the Company requires access to the Location in connection with the performance of the Services, the Customer shall:
- 7.8.1 provide the Company and its personnel with safe access to, movement around and egress from the Location; and
- 7.8.2 supply the Customer with details of any requirements which may affect the performance of its obligations in any way, in advance of the Company attending at the Location.
7.9 The Customer shall:
- 7.9.1 co-operate with the Company and its sub-contractors in all matters relating to the Services;
- 7.9.2 provide the Company, its agents, sub-contractors, consultants and employees, in a timely manner and at no charge, with access to the Location and other facilities as required by the Company;
- 7.9.3 allow access to the Location to the Company, its vehicles and machinery for the purpose of supplying the Services, without obligation on the Company to make good any damage to the Location howsoever caused;
- 7.9.4 provide to the Company, in a timely manner, such information as the Company may reasonably require and ensure that it is accurate in all material respects;
- 7.9.5 be responsible (at its own cost) for preparing the Location for the supply of the Services, including identifying, monitoring, removing and disposing of any hazardous materials from the Location in accordance with all Applicable Laws, before and during the supply of the Services at the Location, and informing the Company of all of the Customer’s obligations;
- 7.9.6 warrant that it has provided the Company with all relevant full and accurate information as to the Location and that there are no pipes drains wires cables or other underground obstructions at the Location whatsoever where the Services are to be performed;
- 7.9.7 inform the Company of all health and safety rules and regulations and any other reasonable security requirements that apply at the Location;
- 7.9.8 indemnify the Company with regard to any defect or subsidence or heave arising from the unsuitability or weakness of the foundation or ground on which the Services are to be performed and shall ensure that such foundations are of adequate strength to support the Services to be performed.
7.10 The Customer acknowledges that the Company is not a surveyor and that the performance of a survey to confirm the adequacy of the Location or its foundations or ground for the Services is the responsibility of the Customer. All quotations provided by the Company assume a sub base terrain of earth, clay or similar material. In the event that another form of sub base is encountered on the premises (including but not limited to rock, concrete or other solid material) the Customer agrees to meet the Company’s costs in removing and remediating that sub- base.
7.11 Where the Company provides that the Customer is to prepare the Location and/or carry out drainage work at the Location before the Services are to be commenced the Company shall be entitled to delay commencement of the Services unless and until the Location Site meets the Company’s requirements as set out in their guidance note. The Company’s guidance note is just that, and the Customer shall obtain its own professional advice concerning the preparation of the Location for the Services.
7.12 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

8. PRICES, CHARGES AND PAYMENT

8.1 Unless otherwise expressly stated that the Materials are to be collected by the Customer, the price for the Materials and the Services (“the Price”) shall be inclusive of the cost of delivery and packaging and:
- 8.1.1 shall be the fixed price set out in the Quotation; or
- 8.1.2 where the Services are supplied on a time and materials basis, the Price for the Materials together with the charges calculated as payable for the Services provided in accordance with the term specified in the Quotation.
8.2 A reasonable extra charge will be made if, at the request of the Customer, Materials are delivered in a quantity of less than one full vehicle load or if a load is delivered in a manner other than by way of delivery to one point of discharge.
8.3 In respect of a Contract for the supply of Materials only, the Company shall invoice the Customer on or at any time after completion of delivery at the Location. In respect of Services, the Company shall invoice the Customer on the intervals or on the invoice dates set out in the Quotation.
8.4 Except where clause 14.1 applies, the Customer shall pay each invoice submitted by the Company:
- 8.4.1 within 30 days of the date of the invoice or in accordance with any other credit terms agreed by the Company as set out in the Quotation and confirmed in writing to the Customer signed by a Director; and
- 8.4.2 in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract.
8.5 Receipt for payment will only be issued by the Company at the Customer’s written request.

IF YOU ARE A CONSUMER

8.6 If the rate of VAT changes between Your order date and the date we supply the product, we will adjust the rate of VAT that You pay, unless You have already paid for the product in full before the change in the rate of VAT takes effect.
8.7 It is always possible that, despite our best efforts, some of the Material and/or Services we sell may be incorrectly priced. We will normally check prices before accepting Your order so that, where the correct price at Your order date is less than our stated price at Your order date, we will charge the lower amount. If the product’s correct price at Your order date is higher than the price stated to You, we will contact You for Your instructions before we accept Your order. If we accept and process Your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by You as a mispricing, we may end the Contract, refund You any sums You have paid and require the return of any materials provided to You.
8.8 If You think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge You interest on correctly invoiced sums from the original due date.
8.9 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 13 (Termination), the Customer 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 8.9 will be calculated at the base rate of the Bank of England plus 2% per annum.

IF YOU ARE A BUSINESS

8.10 The Company reserves the right to:
- 8.10.1 increase the Price of the Materials and/or Services by giving not less than 5 Business Days’ notice to the Customer at any time before delivery of the Materials or completion of the performance of the Services, to reflect any increase in the cost of the Materials and/or Services to the Company that is due to:
  - (a) any factor beyond the control of the Company (including but not limited to increases in taxes and duties, and increases in labour, delivery costs materials and other related costs);
  - (b) any request by the Customer to change the delivery date(s), quantities or types of Materials ordered, or the Materials Specification or the Services Specification; or
  - (c) any delay caused by any instructions of the Customer in respect of the Materials and/or Services or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Materials and/or Services.
- 8.10.2 increase the Company’s standard daily fee rates (if applicable).
8.11 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 Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company 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.
8.12 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 13 (Termination), the Customer 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 8.12 will be calculated at the base rate of the Bank of England plus 8% per annum.
8.13 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).

9. INTELLECTUAL PROPERTY RIGHTS

9.1 All Intellectual Property Rights in the Documentation or arising out of or in connection with the Materials and/or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Company.
9.2 The Company grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence during the term of this Contract to copy the Documentation (excluding materials provided by the Customer) for the purpose of receiving and using the Materials and/or Services in its business.
9.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 9.2. 9.4 The Customer grants the Company a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Company for the term of the Contract for the purpose of providing the Services to the Customer.
9.5 Notwithstanding any of the above, the Company shall be entitled during and after the term of this Contract to use any customer material (which shall include, for the purposes of this clause 9.5 any photographs taken by the Company of the Location, Materials and/or Services) for the purposes of the Company promoting its work and its business, including on the Company’s website, pitches and in its marketing campaigns. All Intellectual Property Rights associated with any photographs taken of the Location, Materials and/or Services by the Company shall be owned by the Company.

10. DATA PROTECTION

10.1 Both parties in performing their obligations under this Contract, shall comply with all applicable requirements of the Data Protection Legislation and any other applicable data protection laws, statutes, regulations and codes from time to time.
10.2 Without prejudice to the generality of this clause 10, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to the Company for the duration and purposes of the Contract.

11. CONFIDENTIALITY

11.1 Each party undertakes that it shall not at any time during the Contract, and for a period of 3 years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, Intellectual Property Rights or any other information that would be deemed as confidential except as permitted:
- 11.1.1 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 or in connection with this Contract;
- 11.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
- 11.1.3 to the Company sub-contractors to the extent necessary to sub-contract any of the Services.
11.2 This clause 11 shall survive termination of the Contract.

12. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1 Nothing in these Terms limits or excludes the liability of the Company for:
- 12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or a subcontractors (as applicable);
- 12.1.2 fraud or fraudulent misrepresentation; or
- 12.1.3 any other matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

IF YOU ARE A CONSUMER

12.2 As a Consumer, the Company will be responsible for loss or damage that You suffer as a foreseeable result of us breaking this Contract, failing to use reasonable care and skill, or providing materials which are faulty or not as described. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was made, both we and You knew it might happen, for example, if You discussed it with us during the sales process.
12.3 The Company does not attempt to limit or exclude its liability under these Terms or the Contract for any breach of the Consumer Rights Act 2015 (including the Company’s legal obligation to supply Materials that are of a satisfactory quality and/or supply Service with reasonable care and skill).

IF YOU ARE A BUSINESS

12.4 The exclusions and limitations of liability referred to in this clause 12.4 shall apply, whether the Losses arose in contract, tort (including negligence), breach of statutory duty or otherwise and whether or not the Losses were foreseeable or in the contemplation of the parties. Subject to clause 13.1:
- 12.4.1 the Company shall under no circumstances whatever be liable to the Customer for any:
  - (a) loss of profit;
  - (b) loss of goodwill or reputation;
  - (c) loss of business;
  - (d) loss of business opportunity;
  - (e) loss of anticipated saving;
  - (f) loss or corruption of data or information; or
  - (g) any indirect, special or consequential Loss, that arises under, in connection with or otherwise arising out of the Contract; and
- 12.4.2 the Company’s total liability to the Customer in respect of all other Losses arising under or in connection with the Contract shall in no circumstances exceed the aggregate sum of the total Price paid by the Customer.
12.5 The Customer shall indemnify, keep indemnified and hold harmless the Company in full from and against any and all Losses suffered or incurred by the Company or arising out of or in connection with the acts or omissions (including any breach of or delay in complying with the obligations imposed by this Contract) by the Customer and any third party acting for it or on its behalf, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
12.6 This clause 12 shall survive termination of the Contract.

13. TERMINATION: THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE

13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- 13.1.1 the Customer is a Consumer, and its exercises its right to cancel the Contract in accordance with clause 16 or its rights under the Consumer Rights Act 2015;
- 13.1.2 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
- 13.1.3 the other party enters into an IVA or is made bankrupt 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), 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;
- 13.1.4 where the Customer is a Business, the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- 13.1.5 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
- 13.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
- 13.2.2 where the Customer is not a Consumer there is a change of Control of the Customer, whereby Control has the meaning given in section 1124 of the Corporation Tax Act 2010.
13.3 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services and all further deliveries of Materials under the Contract if the Customer fails to pay any amount due to the Company under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1.3 to clause 13.1.5, or the Company reasonably believes that the Customer is about to become subject to any of them.

14. CONSEQUENCES OF TERMINATION

14.1 On termination of the Contract:
- 14.1.1 the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services and Materials supplied but for which no invoice has been submitted, The Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
- 14.1.2 the Customer shall return all Materials, equipment, documents and other property of the Company and Materials which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose.
14.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

15. FORCE MAJEURE

15.1 The Company reserves the right to defer the date of delivery of the Materials or reduce the volume of the Materials to be delivered to the Customer (without liability to the Customer) or suspend any of the Services if it is prevented due to a Force Majeure Event.
15.2 If a Force Majeure Event prevents, hinders, or delays the Company’s performance of its obligations for more than 60 Business Days, the Customer may terminate the Contract by giving written notice to the Company.
15.3 If You are a Consumer You may cancel the Contract if a Force Majeure Event takes place and You no longer wish the Company to supply the Materials and/or Services. Please see Your cancellation rights under clause 16.

16. CONSUMER CANCELLATION RIGHTS: THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE

Your rights to cancel an order for materials and/or services. This clause only applies if you are a consumer

16.1 Under the Consumer Contract Regulations 2013 (the Regulations), the Customer (being a Consumer) shall be entitled to change its mind and cancel the Contract during the cancellation period referred to within clause 16.2.
16.2 The cancellation period under the Regulations are as follows:
- 16.2.1 where Services are supplied, the Customer can exercise its right to cancel within 14 days from the date of the Contract; and
- 16.2.2 where Materials are supplied, the Consumer can exercise its right to cancel until 14 days from the end of the date on which the Materials have been delivered to the Customer.
16.3 Under this Contract, it is very likely that the Contract will be for the purchase of both Materials and Services (associated with the construction and installation in of the Materials). The Customer may, therefore, have parallel rights to cancel in respect of both elements set out above.
16.4 Under the Regulations, the Services commencement date cannot be a date that falls within the typical 14-day cancellation period referred to in clause 16.2.1, unless the Customer makes an express request for the Services to commence on such date. Where, following pre-Contract discussions between the Company and the Customer, the Order contains a Services commencement date that is within the 14-day cancellation period, the Customer’s entry into this Contract shall be an express request for the Company to provide the Services in the cancellation period.
16.5 Even where the Customer has made an express request for the Company to provide the Services during the cancellation period, the Customer can still change its mind and cancel the Contract within the 14-day cancellation period. However, where the Services have been part-performed:
- 16.5.1 the Company will be entitled to receive payment of the Price that relates to those Services in accordance with this Contract; and
- 16.5.2 subject to clause 16.6, the Customer shall be responsible for the costs that are associated with the uninstallation and/or return of any Materials and/or equipment that have been supplied as part of the Services to the Company.
16.6 The Customer’s right to receive a refund for any Materials supplied shall cease where those Materials have been mixed inseparably with other items after their delivery. Given the nature of the Services, it is possible that this could take place.
16.7 The Customer may exercise its rights to change its mind by completing and returning the Model Cancellation Form contained in the Schedule to this Contract or otherwise by making a clear statement to the Company.
16.8 Where the Customer exercises its rights to cancel, subject to clause 16.5 and clause 13 (Termination), such cancellation ends the obligations of the parties under the Contract.

17. GENERAL

17.1 Assignment and other dealings
- 17.1.1 The Company may at any time;
  - (a) assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract; and/or
  - (b) sub-contract the performance of any and all of the supply of the Materials and/or Services at its sole discretion.
- 17.1.2 The Customer shall not assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
17.2 If the Customer shall at any time, other than where the Company is in breach of this Contract with regard to the performance of the Services request that any sub-contractor is removed from the Contract, the Company shall be entitled to increase the Price for completion of the performance of the Services and extend any date given for completion of the Services.
17.3 Notices.
- 17.3.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
  - (a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  - (b) sent to the following email addresses:
    - (i) info@equestriansurfaces.co.uk in the case of the Company; and
    - (ii) such email address as notified by the Customer to the Company in accordance with this clause 17 in the case of the Customer.
- 17.3.2 Any notice or communication shall be deemed to have been received:
  - (a) if delivered personally, when left at the address referred to in clause 17.3.1;
  - (b) if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
  - (c) if sent by email, at 9.00 am on the next Business Day after transmission.
- 17.3.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.4 Severance. 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, and the parties shall negotiate in good faith to agree a replacement provision to that, to the greatest extent possible, achieves the commercial result of the original position. Any modification to or deletion of a provision or part-provision under this clause 17.4 shall not affect the validity and enforceability of the rest of the Contract.
17.5 Waiver.
- 17.5.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
- 17.5.2 A failure or delay to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- 17.5.3 A party that waives a right or remedy provided under this Contract or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
17.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.7 Entire agreement.
- 17.7.1 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.
- 17.7.2 Each party acknowledges that in entering into the Contract it does not rely on, and 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.
- 17.7.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
17.8 Third party rights.
- 17.8.1 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.
- 17.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.9 Variation. Except as set out in these Terms, no variation of the Contract shall be effective unless it is agreed in writing and signed by both parties.
17.10 Governing law. 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 and Wales.
17.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Terms & Conditions

TERMS AND CONDITIONS FOR THE SUPPLY OF MATERIALS AND/OR SERVICES

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