Terms & Conditions
Wimborne Turf – GENERAL TERMS AND CONDITIONS OF SALE . Interpretation In these Conditions:
1.1 “the Buyer” means the party which agrees to purchase the Products from Wimborne Turf subject to these Conditions;
1.2 “these Conditions” means the terms and conditions of sale set out in this document;
1.3 “the Contract” means the agreement between Wimborne Turf and the Buyer for the sale and purchase of the Products, which shall be subject to these Conditions;
1.4 “the Delivery Address” means where Wimborne Turf is to deliver the Products, the address for delivery of the Products shall be the specified or, where no such address is specified, the Buyer’s principal place of business;
1.5 “the Estimated Delivery Date” means where Wimborne Turf is to deliver the Products, the date on which Wimborne Turf estimates that the Products will be delivered.
1.6 “the Products” means the turf products which Wimborne Turf is to supply to the Buyer in accordance with these Conditions.
1.7 “Wimborne Turf” means Wimborne Turf Farms Limited whose principal place of business is at 330 Southport Road, Scarisbrick, Lancashire PR8 5LF
. Basis of sale 2.1 These Conditions apply to all Contracts entered into by Wimborne Turf. By placing an order with Wimborne Turf or accepting Wimborne Turf’s quotation, the Buyer agrees to deal with Wimborne Turf on these Conditions to the exclusion of all other terms, conditions, warranties or representations with the exception of any terms specified in writing, which terms shall in each instance be subject to approval by a duly authorised manager or a director of Wimborne Turf. No further variation to these Conditions shall be binding unless made in writing specifying both which clause is to be varied and full details of such variation and signed on behalf of the Buyer and by a duly authorised manager or director of Wimborne Turf.
2.2 Any advice or recommendation given by Wimborne Turf or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by a duly authorised manager or a director of Wimborne Turf is followed or acted upon entirely at the Buyer’s own risk and accordingly Wimborne Turf shall not be liable for any such advice or recommendation which is not so confirmed.
2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Wimborne Turf shall be subject to correction without any liability on the part of Wimborne Turf.
. Sale and purchase 3.1 The Buyer agrees to purchase the Products from Wimborne Turf and Wimborne Turf agrees to sell the Products to the Buyer.
3.2 The Buyer shall not be entitled to cancel in whole or in part any order which Wimborne Turf has accepted or any quotation of Wimborne Turf which the Buyer has accepted in either case whether orally or in writing.
3.3 If the Products are to be produced or any process is to be applied to them by Wimborne Turf in accordance with specifications submitted by the Buyer, the Buyer shall indemnify Wimborne Turf against all loss, damages, costs and expenses awarded against or incurred by Wimborne Turf in connection with or paid or agreed to be paid by Wimborne Turf in settlement of any claim for infringement of any patent or other industrial or intellectual property rights or misuse of any confidential information of any other person or any other liability whatsoever which results in Wimborne Turf’s use of the Buyer’s specifications or the marking of the Products or from the sale or supply of such Products by Wimborne Turf pursuant to the provisions of clause 4.11 below.
3.4 Wimborne Turf reserves the right to make any changes in the specifications of the Products which are required to conform with any applicable safety or other requirements or which so not materially affect their quality or performance.
. Taking possession of the Products 4.1 Turf contains living plants and the care and maintenance of the Products becomes the full responsibility of the Buyer on delivery or collection. Wimborne Turf will not lay or maintain the Products. The Products must be laid by the Buyer within 24 hours of delivery or collection.
4.2 The Buyer shall inspect the Products promptly on delivery or collection and any shortage or (subject to clause 6.1 and 6.2 below) any defect in or failure to meet any specification by the Products shall be notified to Wimborne Turf by telephone as soon as possible after the Buyer discovers such defect or non-conformity, and in any event within 36 hours of delivery or collection. All such notifications shall be promptly confirmed in writing. Failure to notify in accordance with this clause 4.2 shall be deemed to constitute acceptance of the Products and confirmation by the Buyer that there is no such defect or failure.
4.3 Where Wimborne Turf agrees to deliver the Products to the Buyer, the following provisions of this clause 4 shall apply.
4.4 Wimborne Turf shall use its reasonable efforts to deliver and unload the Products to the Buyer at the Delivery Address on or around the Estimated Delivery Date, but time of delivery shall not be of the essence.
4.5 Wimborne Turf shall be entitled to deliver the Products in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by Wimborne Turf in respect of any such instalment shall not entitle the Buyer to cancel any other instalment or treat the Contract as a whole as repudiated.
4.6 If less than the correct amount of the Products is delivered, then unless the Buyer notifies Wimborne Turf and the carrier (otherwise than by a note on the delivery note) within three days of delivery no claim against Wimborne Turf may be made in respect of short delivery of such Products.
4.7 If the Products have not been delivered despite receipt by the Buyer of the invoice from Wimborne Turf relating to them, then unless the Buyer notifies Wimborne Turf within seven days after the date of such invoice no claim against Wimborne Turf may be made in respect of non-delivery of those Products.
4.8 Subject to clause 4.2 the Buyer shall be deemed to accept the Products on delivery notwithstanding any late delivery by Wimborne Turf.
4.9 The Buyer shall give full access to the Delivery Address to Wimborne Turf for the purpose of delivering the Products and shall indemnify Wimborne Turf against any additional costs which Wimborne Turf incurs by reason of the Buyer’s failure properly to grant such access.
4.10 Wimborne Turf shall procure that its employees who deliver the Products comply with all reasonable safety, security and other regulations which are in force or apply at the Delivery Address and are notified to it the Buyer shall indemnify Wimborne Turf against any loss which Wimborne Turf may suffer or incur as a result of any injury to its employees or damage to or loss of its property whilst at the Delivery Address resulting from anything other than the negligence or malfeasance of Wimborne Turf or it employees.
4.11 If the Buyer fails to grant access to the Delivery Address, fails to take delivery of the Products or fails to give Wimborne Turf adequate delivery instructions before the Estimated Delivery Date, then, without prejudice to any other right or remedy available to Wimborne Turf, Wimborne Turf may sell or supply the Products in or to a third party at the best price readily obtainable (if any) and (after deducting all storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract and Wimborne Turf shall be entitled to charge interest (both before and after any judgment) on the price payable for the Products under the Contract or the shortfall, as applicable, at 4% over the base rate from time to time of Lloyds Bank from the Estimated Delivery Date to the date of actual delivery.
. Prices and payment 5.1 The price of the Products shall be the price quoted by Wimborne Turf or, if not specified and no price has been quoted (or a quoted price is no longer valid), the price listed in Wimborne Turf’s published price list current at the date of the Contract. All prices quoted are valid for 30 days only or if either, agreement to purchase is made, after which time they may be altered by Wimborne Turf without giving notice to the Buyer.
5.2 Wimborne Turf reserves the right, by giving notice to the Buyer at any time before delivery or collection, to increase the price of the Products to reflect any increase in the cost to Wimborne Turf which is due to any factor beyond its control, any change in delivery or collection dates, quantities or specifications for the Products which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give Wimborne Turf adequate information or instructions.
5.3 Unless otherwise stated or under the terms of any quotation or in in any price list of Wimborne Turf, all prices given by Wimborne Turf are inclusive of charges for delivery, transport, packaging and insurance. If Wimborne Turf’s delivery personnel shall in effecting or seeking to effect delivery of the Products spend in excess of one hour following arrival at the Delivery Address, Wimborne Turf’s hourly attendance rate in effect from time to time shall be levied in respect of each hour or part hour so spent.
5.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to Wimborne Turf.
5.5 Wimborne Turf shall be entitled to invoice the Buyer for all amounts due under the Contract on or at any time after delivery or collection of the Products unless the Buyer wrongly fails to collect or take delivery of them, in which case Wimborne Turf shall be entitled to invoice the Buyer at any time after Wimborne Turf has notified the Buyer that the Products are ready for collection or (as the case may be) Wimborne Turf has tendered delivery of the Products.
5.6 The Buyer shall make payment to Wimborne Turf in respect of all invoices in full and without any deduction or set off (whether in relation to such invoice or otherwise) by the due date.
5.7 All payments shall be applied to invoices and to Products listed in such invoices in the order determined in its discretion by Wimborne Turf.
5.8 If full payment is not received by Wimborne Turf by the Due Date then without prejudice to its rights Wimborne Turf shall be entitled:
5.8.1 sue for the entire price; and/or
5.8.2 to charge interest (both before and after any judgment) at the rate of 4% over the base rate from time to time of Lloyds Bank on the outstanding balance; and/or
5.8.3 to require the immediate return to Wimborne Turf of all goods agreed to be sold by Wimborne Turf to the Buyer in which the property has not passed to the Buyer in accordance with the provisions of clause 7 below and the Buyer hereby agrees to reimburse to Wimborne Turf upon demand Wimborne Turf’s costs or expenses in recovering such goods.
. Warranty and liability 6.1 Wimborne Turf warrants that:
6.1.1 it has used its reasonable endeavours to ensure that the Products when supplied are of good quality consistent with their having been grown in an open field environment; and
6.1.2 the Products have had the benefit of Wimborne Turf’s disease and weed treatments and plant nutrition and maintenance programmes; and
6.1.3 the Products have had the benefit of the application of insecticides, consistent with Wimborne Turf’s wildlife protection and conservation policy, which precludes the indiscriminate use of pesticides.
6.2 Wimborne Turf warrants that the Products comprise good quality grass seed cultivars, blended and sown in specific percentages. Indications by Wimborne Turf as to such percentages and other characteristics of the Products are given in good faith but are for guidance only and shall not constitute representations, terms, conditions or warranties under the Contract. Without prejudice to the generality of the foregoing, the percentages of seed cultivars sown may not correspond to the percentages of the grass species in the Products in their mature state when supplied. The Products when supplied may in addition contain a small percentage of unsown species.
6.3 Wimborne Turf accepts no liability in respect of loss or, damage to or defects in the Products which occur after they have been delivered or collected and accordingly shall be under no liability in respect of any defects in the Products arising
6.3.1 from the failure of the Buyer or its agents to follow normal practices and standards in the preparation of soil and the laying, management and maintenance of turf; or
6.3.2 from the negligence or wilful damage of the Buyer or its agents in respect of the Products; or
6.3.3 from the failure of the Buyer or its agents to follow Wimborne Turf’s instructions (whether oral or in writing), or to comply with clause 4.1 above; or
6.3.4 from misuse of the Products.
6.4 Wimborne Turf shall be under no liability arising from any specifications supplied by the Buyer, or if the total price of the Products has not been paid by the Due Date.
6.5 In the event the Products shall not comply with the warranties set out at clauses 6.1 above. Wimborne Turf shall, provided that the Buyer shall have complied with clause 4.2, replace or repair such Products (or the part in question) free of charge or, at Wimborne Turf’s sole discretion, refund to the Buyer the price of the Products (or a proportionate part of the price as appropriate). Where the Product has been delivered by Wimborne Turf, Wimborne Turf may deduct from such refund a sum representing that portion of the price attributable to the cost of delivery. Wimborne Turf shall have no further liability to the Buyer.
6.6 There are no warranties, conditions, guarantees or representations whether express or implied oral or in writing, except as expressly stated in the Contract.
6.7 Wimborne Turf shall be liable for any death or personal injury arising from use or supply of the Products to the extent that it results from the proven negligence of Wimborne Turf or its employees.
6.8 Wimborne Turf shall be liable to the Buyer for any direct physical damage other than death or personal injury to the extent that its results from the negligence of Wimborne Turf or its employees up to a maximum of £1,000,000 for any one event or series of connected events.
6.9 Except pursuant to sub-clause 6.7 above, Wimborne Turf shall not in any event be liable for any indirect, special or consequential damages, howsoever arising (including but not limited to loss of anticipated profits) in connection with or arising out of the furnishing, functioning or use of the Products, or any item or service provided, and shall not be liable for any other damages except as provided in the Contract.
6.10 Except pursuant to sub-clauses 6.7 and 6.8 above, in no event shall Wimborne Turf’s liability in respect of any of the Products exceed the price paid for those Products.
6.11 Except pursuant to sub-clause 6.7 above, no action, regardless of form, arising out of the transactions under the Contract may be brought by the Buyer more than two years after the cause of action has accrued.
6.12 The Buyer’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed under the Contract is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action.
. Risk and title 7.1 Risk of damage to or loss of the Products shall pass to the Buyer on delivery or collection.
7.2 Notwithstanding delivery or collection and the passing of risk in the Products, or any other provisions of these Conditions, the property in the Products shall not pass to the Buyer and shall be retained by Wimborne Turf until Wimborne Turf has received in cash or cleared funds full payment of the price of the Products and of all sums due in connection with the supply of all goods to the Buyer by Wimborne Turf at any time.
7.3 For the avoidance of doubt, the Products, all other goods supplied to the Buyer by Wimborne Turf and all goods into which the Products or such other goods have been incorporated which are in the Buyer’s possession shall be presumed to belong to Wimborne Turf unless the Buyer can prove otherwise.
7.4 Until such time as the property in any goods owned by Wimborne Turf passes to the Buyer, Wimborne Turf shall be entitled but not obliged at any time to require the Buyer to deliver up such goods to Wimborne Turf and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where such goods are stored and repossess them. The Buyer shall procure that any third party which holds such goods shall permit Wimborne Turf to take possession of them. Wimborne Turf shall be entitled to use or dispose of such goods as it wishes. Unless Wimborne Turf expressly elects otherwise any contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by Wimborne Turf of any of its rights under this clause.
. Termination 8.1 Wimborne Turf shall be entitled to terminate the Contract forthwith by notice in writing to the Buyer if the Buyer:
8.1.1 commits an irremediable breach of the Contract, persistently repeats a remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same: or
8.1.2 (being a company) is unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986 or shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors or a receiver, administrative receiver or similar officer is appointed over all or a substantial part of the undertaking or assets of the Buyer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Buyer (whether by the presentation of a winding up petition or otherwise) or for the making of an administration order (other than for the purposes of reconstruction or amalgamation); or
8.1.3 (being an individual) is unable to pay his debts within the meaning of s.268 of the Insolvency Act 1986 or a petition is presented for his bankruptcy or the Buyer makes an arrangement or compromise for the benefit of his creditors whether pursuant to the provisions of Part VIII Insolvency Act 1986 or otherwise; or
8.1.4 (being a partnership) is unable to pay its debts or a petition is presented for the winding up of the Buyer under the provisions of the Insolvent Partnerships Order 1994 whether or not involving individual insolvency proceedings against the Buyer’s partners and presented by creditors or by the partners themselves or such a petition is presented in conjunction with bankruptcy or individual insolvency or petitions against any partner or if the Buyer enters into any composition, scheme of arrangement or voluntary arrangement including the business and assets of the Buyer or the share of any partner or in the event of any action for a partnership account and/or a winding up of or a dissolution of the Buyer under the Partnership Act 1890 or if any of the states of affairs or events described in clause 8.1.3 exist or occur to or in relation to any of the partners or if the Buyer is dissolved; or
8.1.5 Ceases or threatens to cease to carry on business; or if Wimborne Turf reasonably apprehends that any of such events is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 In the event of termination by Wimborne Turf pursuant to clause 8.1 above then, without prejudice to any other right or remedy available to Wimborne Turf, Wimborne Turf shall be entitled to cancel the Contract or suspend any further deliveries under it without any liability to the Buyer and, if the Products have already been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and Wimborne Turf shall be entitled to charge interest (both before and after any judgment) at any rate of 4% over the base rate from time to time of (Lloyds Bank) from the time of such cancellation or suspension until Wimborne Turf receives payment.
. Remedies The remedies available to Wimborne Turf under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Buyer.
. Waiver The failure or delay of Wimborne Turf to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect Wimborne Turf’s right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right , power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
. Severability The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
. Notices Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party at its address set out above or to such other address which it has previously notified to the sending party and shall be deemed to have been given when actually received or, if sent by recorded delivery mail and returned marked “gone away” or to the like effect, on return of such recorded delivery mail.
. Assignment The Contract is personal to the Buyer and the Buyer may not assign, transfer, subcontract or otherwise part with the Contract or any right or obligation under it without the prior written consent of Wimborne Turf
. Force Majeure Neither party shall be liable to the other if its performance of its obligations under the Contract (other than an obligation to pay money) is prevented or hindered due to any circumstances outside its control.
. Headings Clause headings are purely for ease of reference and do not form part of or affect the interpretation of the Contract.
. Entire agreement These Conditions contain all the terms agreed by the parties relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation, undertaking or promise (unless fraudulent) shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in the Contract.
. Variation No variation or amendment to the Contract shall be effective unless in writing signed by authorised representatives of the parties.
. Law and Jurisdiction The construction, validity and performance of the Contract and any dispute or controversy arising from it shall be governed by the law of England and the parties accept the non-exclusive jurisdiction of the English Courts