UNDERFOOT SOLUTIONS’ TERMS AND CONDITIONS FOR THE SUPPLY OF ARTIFICIAL GRASS AND/OR THE INSTALLATION OF ARTIFICIAL GRASS AND RELATED TERMS AND SERVICES

The Customer’s attention is particularly drawn to the provisions of clause 11. 1. INTERPRETATION

.    1.1  Definitions. In these Conditions, the following definitions apply: 
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business. 
Conditions: these terms and conditions.
Contract: the contract between Underfoot Solutions and the Customer for the supply of Goods 
and/or Services in accordance with these Conditions. 
Customer: the person or firm who purchases the Goods and/or Services from Underfoot Solutions. 
Delivery Location: is the location agreed by telephone when the Order is placed but is limited to kerb side delivery. 
Force Majeure Event: has the meaning given to it in clause 12.1(a).
Goods: the goods (being artificial grass and ancillary items) (or any part of them) contained in 
the Order placed with Underfoot Solutions by telephone. 
Order: order made placed by the Customer during a telephone conversation with Underfoot Solutions for the supply of Goods and/or Services which shall be confirmed by Underfoot Solutions by sending to the Customer an Order Confirmation. 
Order Confirmation the confirmation in writing of the Order sent by Underfoot Solutions following the placing of the Order by telephone by the Customer with Underfoot Solutions 
Underfoot Solutions: Underfoot Solutions Limited incorporated in England and Wales whose registered company number is 06136680 (VAT registration number 909 682 979) and whose registered office is Vantage, Victoria Street, Basingstoke, Hampshire, United Kingdom RG21 3BT and whose trading address is Ridgewood Industrial Park, New road, Uckfield, East Sussex TN22 5QE 
Services: are the services of the installation of the Goods (being artificial grass) including any ancillary services.

.    1.2  Construction. In these Conditions, the following rules apply:

.                      (a)  a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

.                      (b)  any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

.                      (c)  a reference to writing or written includes faxes and e-mails.

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2. BASIS OF CONTRACT

.    2.1  The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

.    2.2  The Order shall only be deemed to be accepted when Underfoot Solutions sends the Order Confirmation and/or pro-forma invoice to the Customer at which point and on which date the Contract shall come into existence (Contract Date).

.    2.3  The Contract constitutes the entire agreement between the parties.

.    2.4  Any samples, drawings, descriptive matter or advertising issued by Underfoot Solutions and any descriptions of the Goods or illustrations or descriptions of the Services contained in Underfoot Solutions’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

.    2.5  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

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

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

3. DELIVERY OF GOODS

.    3.1  Underfoot Solutions shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods.

.    3.2  Delivery of the Goods shall be completed on the Goods’ delivery to the kerb side of the Delivery Location. Underfoot Solutions shall have fulfilled its obligation to deliver the Goods by delivering the Goods to the kerb side of the Delivery Location and shall have no contractual obligation to deliver the goods to another position at the Delivery Location.

.    3.3  If any item which comprises the Goods weighs in excess if 25 kilograms the Customer shall provide suitable assistance to unload such goods from the delivery vehicle to the kerb side at the Delivery Location (unless contracted for a two-man delivery). If it fails to do so the Customer shall be liable for any redelivery costs incurred by the Seller.

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.    3.4  Any dates quoted for delivery of the Goods and/or provision of the Services (installation of the artificial grass) are approximate only, and the time of delivery is not of the essence. Underfoot Solutions shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Underfoot Solutions with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or the provision of the services (the installation of the artificial grass).

.    3.5  If Underfoot Solutions fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Underfoot Solutions shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide Underfoot Solutions with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

.    3.6  THE PROVISIONS OF THIS CLAUSE DOES NOT APPLY IF THE CUSTOMER IS CONTRACTING AS A CONSUMER. If the Customer fails to accept or take delivery of the Goods within three Business Days of Underfoot Solutions notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Underfoot Solutions’s failure to comply with its obligations under the Contract in respect of the Goods:

.                      (a)  delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day following the day on which Underfoot Solutions notified the Customer that the Goods were ready; and

.                      (b)  Underfoot Solutions shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

.    3.7  THE PROVISIONS OF THIS CLAUSE DOES NOT APPLY IF THE CUSTOMER IS CONTRACTING AS A CONSUMER. If seven Business Days after Underfoot Solutions notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, Underfoot Solutions may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4. CONSUMER RIGHTS THE PROVISIONS OF THIS CLAUSE 4 ONLY APPLIES IF THE CUSTOMER IS CONTRACTING AS A CONSUMER

4.1 Subject to clause 4.2 if the Customer is contracting as a consumer the Customer may cancel the contract where it is for the supply of Goods only (i.e. does not include the supply of Services for the installation of the Goods) at any time within seven working days beginning on the day after the Customer has received the Goods. In this case the Customer will receive a full refund of the price paid for the Goods and/or Services in accordance with Underfoot Solutionss’ refunds policy set out in clause 5.1(a) below.

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.    4.2  The Customer will not have a right to cancel the Contract for the supply of Goods where:-

.                      (a)  The Goods are made to the Customers’ specifications or clearly personalised such as cutting to Goods (artificial grass) to the Customers requirements;

.                      (b)  Goods which have supplied have been installed where by reason of the nature of the installation they have been personalised to the Customer’s specifications;

.                      (c)  Goods which comprise artificial grass cut to lengths 15 meters or less;

.                      (d)  the supply of Services where the Services comprise the installation of the Goods and the installation has begun with the Customers agreement before.

.    4.3  Subject to clause 4.4, if the Customer is contracting as a consumer the Customer may cancel the contract where it is for the supply of Goods and Service (i.e. the supply of artificial grass and its installation) at any time within seven working days beginning with the Contract Date

.    4.4  The customer will not have a right to cancel an order for the supply of Goods and Services (i.e. the supply and installation of artificial grass) where the provision of the Services (i.e. the installation of the artificial grass) has begun with the Customers agreement before the end of the period of seven days referred to in clause 4.3.

.    4.5  To cancel the Contract the Customer must inform Underfoot Solutions in writing. The Customer must also return the Goods to Underfoot Solutions as soon as reasonably practicable and at the Customer’s cost. The Customer shall have a legal obligation to take reasonable care of the Goods while they are in the Customer’s possession. If the Customer fails to comply with this obligation Underfoot Solutions may have a right of action against the Customer for compensation.

5. UNDERFOOT SOLUTIONS’ REFUNDS POLICY

5.1 If the goods are returned to Underfoot Solutions:-

.    (a)  because the Customer has cancelled the Contract within the seven day cooling off period referred to at clauses 4.1 or 4.3 Underfoot Solutions will process the refund due as soon as possible and in any case within 30 days of the day notice of cancellation is given. In this case Underfoot Solutions will refund the price of the Goods in full and any applicable delivery charges. However, the Customer will be responsible for the cost of returning the Goods to Underfoot Solutions.

.    (b)  because they are damaged or defective, Underfoot Solutions will refund or replace as requested by the Customer. Underfoot Solutions will process the refund due as soon as possible and in any case within 30 days of the day notice of cancellation is given. In this case Underfoot Solutions will refund the price of the Goods in full and any applicable delivery charges.

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6. QUALITY OF GOODS

.    6.1  Due to the nature of the Goods (artificial grass) when rolled due to the structure of the artificial grass it creases when rolled and may flatten slightly. Creases will fall out following installation (normally within three months) and any flattening will lift. The artificial grass shall be deemed not to be faulty if when delivered or installed there are creases within it or if it is flat. 
(a) if you have contracted for Services (for Underfoot Solutions to install the Goods (the artificial grass)) Underfoot Solutions will use its reasonable endeavours to reduce the appearance of the joins. 
(b) Artificial grass will in some circumstances curl, flatten and crush and the extent of this will depend on the extent of its usage and the amount of traffic passing on it. This shall be deemed not to be a fault. 
(c) Artificial grass from different batches of manufacture may differ slightly in colour. Underfoot Solutions will supply in respect of any one order supply grass from the same batch. However, artificial grass supplied under different orders is unlikely to be from the same batch and therefore may differ in colour. Any such colour variation shall be deemed not to be a fault. 
(d) The artificial grass supplied may differ slightly in colour from any samples sent and also from any samples shown on Underfoot Solutions’ website or promotional literature due to the limitations of reproducing images on the website or in such literature.

.    6.2  Underfoot Solutions warrants that on delivery, and for a period of three months from the date of delivery (or installation if carried out by Underfoot Solutions) (Warranty Period), the Goods shall:

.                      (a)  conform in all material respects with their description and any sample by which they have been selected;

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

.                      (c)  be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

.                      (d)  be fit for any purpose held out by Underfoot Solutions.

.    6.3  Subject to clause 6.4, if:

.                      (a)  the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.2;

.                      (b)  Underfoot Solutions is given a reasonable opportunity of examining such Goods; and

.                      (c)  the Customer (if asked to do so by Underfoot Solutions) returns such Goods to Underfoot Solutions’s place of business at Underfoot Solutions’s cost,

.    Underfoot Solutions shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

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6.4 Perfectly 6.2 if:

Green shall not be liable for the Goods’ failure to comply with the warranty in clause

.    (a)  the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.3;

.    (b)  the defect arises because the Customer failed to follow Underfoot Solutions’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods.;

.    (c)  the defect arises as a result of Underfoot Solutions following any drawing, design or Goods Specification supplied by the Customer;

.    (d)  the Customer alters or repairs such Goods without the written consent of Underfoot Solutions;

.    (e)  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

.    6.5  Except as provided in this clause 11 Underfoot Solutions shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.2.

.    6.6  The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Underfoot Solutions under clause 6.3.

7. TITLE AND RISK

.    7.1  The risk in the Goods shall pass to the Customer on completion of delivery.

.    7.2  Title to the Goods shall not pass to the Customer until Underfoot Solutions has received payment in full (in cash or cleared funds) for the Goods

.    7.3  Until title to the Goods has passed to the Customer, the Customer shall:

.                      (a)  hold the Goods on a fiduciary basis as Underfoot Solutions’s bailee;

.                      (b)  store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Underfoot Solutions’s property;

.                      (c)  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

.                      (d)  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Underfoot Solutions’s behalf from the date of delivery;

.                      (e)  notify Underfoot Solutions immediately if it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either

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case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; and

(f) give Underfoot Solutions such information relating to the Goods as Underfoot Solutions may require from time to time,

but the Customer may resell or use the Goods in the ordinary course of its business.

7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed clause 7.3(e) above, or Underfoot Solutions reasonably believes that any such insolvency or bankruptcy event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold or installed, and without limiting any other right or remedy Underfoot Solutions may have, Underfoot Solutions may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

8. SUPPLY OF SERVICES

.    8.1  Underfoot Solutions shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

.    8.2  Underfoot Solutions shall use all reasonable endeavours to meet any performance dates for the Services specified discussed when the Order was made and confirmed in the Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

.    8.3  Underfoot Solutions shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Underfoot Solutions shall notify the Customer in any such event.

.    8.4  Underfoot Solutions warrants to the Customer that the Services will be provided using reasonable care and skill.

9. CUSTOMER’S OBLIGATIONS

9.1 The Customer shall:

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

.    (b)  co-operate with Underfoot Solutions in all matters relating to the Services;

.    (c)  provide Underfoot Solutions, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Underfoot Solutions to provide the Services;

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.    (d)  provide Underfoot Solutions with such information and materials as Underfoot Solutions may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

.    (e)  prepare the Customer’s premises for the supply of the Services;

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

9.2 If Underfoot Solutions’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

.    (a)  Underfoot Solutions shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Underfoot Solutions’s performance of any of its obligations;

.    (b)  Underfoot Solutions shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Underfoot Solutions’s failure or delay to perform any of its obligations as set out in this clause 9.2; and

.    (c)  the Customer shall reimburse Underfoot Solutions on written demand for any costs or losses sustained or incurred by Underfoot Solutions arising directly or indirectly from the Customer Default.

10. CHARGES AND PAYMENT

.    10.1  The price for Goods and/or Services shall be the price advised by Underfoot Solutions when the Order was placed and as set out in the Order Confirmation and/or the invoice/pro-forma invoice.

.    10.2  Underfoot Solutions reserves the right to:

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

.    (i)  any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or

.    (ii)  any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Underfoot Solutions adequate or accurate information or instructions in respect of the Goods or the provision of the Services.

10.3 In respect of Goods only orders, Underfoot Solutions shall invoice the Customer on or at any time after completion of delivery and payment is required up-front. In respect of Goods and

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Services orders, Underfoot Solutions shall invoice the Customer as to 50% up-front and 50% on completion of installation.

.    10.4  The Customer shall pay each invoice submitted by Underfoot Solutions:

.                      (a)  for telephone orders for Goods only payment is required up-front otherwise payment shall be within 30 days of the date of the invoice unless otherwise agreed (account holders may have an agreed payment term negotiated on individual basis); and

.                      (b)  in full and in cleared funds to a bank account nominated in writing by Underfoot Solutions, and

.    time for payment shall be of the essence of the Contract.

.    10.5  All amounts payable by the Customer under the Contract are exclusive of amounts in respect 
of value added tax chargeable from time to time (VAT).

.    10.6  Without limiting any other right or remedy of Underfoot Solutions, if the Customer fails to make any payment due to Underfoot Solutions under the Contract by the due date for payment (Due Date), Underfoot Solutions shall have the right to charge interest on the overdue amount at the rate of 3 per cent per annum above the then current Barclays Bank PLC’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

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

.    11.1  Nothing in these Conditions shall limit or exclude Underfoot Solutions’s liability for:

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

.                      (b)  fraud or fraudulent misrepresentation;

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

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

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

.    11.2  Subject to clause 11.1:

(a) Underfoot Solutions shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

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(b) Underfoot Solutions’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the value of goods/services contracted for.

12. GENERAL

.    12.1  Force majeure:

.                      (a)  For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Underfoot Solutions including but not limited to adverse weather, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

.                      (b)  Underfoot Solutions shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

.                      (c)  If the Force Majeure Event prevents Underfoot Solutions from providing any of the Services and/or Goods for more than four weeks, Underfoot Solutions shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

.    12.2  Notices:

.                      (a)  Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

.                      (b)  Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at [9.00 am] on the [second] Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.

.                      (c)  This clause 12.2 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

.    12.3  Waiver and cumulative remedies:

(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay

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by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

.    12.4  Severance:

.                      (a)  If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part- provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

.                      (b)  If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

.    12.5  No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

.    12.6  Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

.    12.7  Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Underfoot Solutions.

.    12.8  Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.