CONDITIONS OF SALE
The buyer's attention is in particular drawn to the provisions of condition 10.4.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Company: Golf 2 Golf Limited (registered in England and Wales with company number 04079089), whose registered office is at 41 Belmont Road, Hemel Hempstead, Hertfordshire HP3 9NY.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Force Majeure Event: has the meaning given in clause 11.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (or any part or parts of them), in each case as set out in the Order.
Order: an order for Goods submitted by the Buyer, as set out in the Buyer's order form.
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) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) 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.
(e) A reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing (including any terms and conditions which the Buyer purports to imply under any purchase order, confirmation of order, specification or any other document).
2.2 Each Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Company issues a written confirmation of the Order, or (if earlier) the Company delivers the Goods to the Buyer, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this clause shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures or on the Company’s website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Company shall not constitute an offer, and no Contract shall come into existence until such time as the Company has accepted an Order in accordance with clause 2.3 above. A quotation shall only be valid for a period of 20 Business Days from its date of issue (provided that the Company has not previously withdrawn it).
3. Cancelling an Order
3.1 The Buyer may cancel any Order which has already been accepted by the Company under clause 2.3 above without liability, subject to the following:
(a) the Buyer’s written notice of the cancellation being received by the Company prior to the Company ordering the relevant goods from its supplier(s), and in any event no later than 40 Business Days after the date of the Order in question; and
(b) payment to the Company of a cancellation charge equal to 20% of the total value of the Order in question.
3.2 No cancellations will be accepted by the Company if they do not comply with the provisions of clause 3.1 above, unless the Company expressly agrees in writing.
4.1 The quantity and description of the Goods are as described in the Company's order acknowledgement (or, in respect of telephone orders only, the Company’s invoice).
4.2 The Company reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
5.1 Unless otherwise agreed in writing, the Company shall deliver the Goods to the address specified in the Buyer’s account application form or such replacement address as the Buyer may subsequently notify to the Company in writing (Delivery Location).
5.2 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location. The Buyer shall provide adequate and appropriate equipment and manual labour at the Delivery Location and at its own expense to enable the Goods to be off-loaded.
5.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If no delivery dates are specified, delivery shall take place within a reasonable time.
5.4 The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or by the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If the Buyer fails to accept delivery of the Goods when they are ready for delivery, then, except where such failure or delay is caused by a Force Majeure Event or the Company's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day after the day on which the Goods were ready; and
(b) the Company shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
5.7 If ten Business Days after the day on which the Goods were ready for delivery the Buyer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
5.8 The Buyer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Buyer that the wrong quantity of Goods was delivered.
5.9 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
6.1 The Company warrants that on delivery, the Goods shall:
(a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(b) be reasonably fit for playing the game of golf in such conditions as are generally considered normal by the Professional Golfers’ Association.
6.2 Subject to clause 6.3, if:
(a) the Buyer gives notice in writing to the Company within 6 months of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost,
the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Company shall not be liable for Goods' failure to comply with the warranty set out in clause 6.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(b) the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Company following any drawing, design or specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, the Company shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
7. Title and risk
7.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
7.2 Title to the Goods shall not pass to the Buyer until the earlier of:
(a) the Company receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Company immediately if it becomes subject to any of the events listed in clause 9.2; and
(e) give the Company such information relating to the Goods as the Company may require from time to time.
7.4 Subject to clause 7.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time:
(a) it does so as principal and not as the Company’s agent; and
(b) title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
7.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 9.2, then, without limiting any other right or remedy the Company may have:
(a) the Buyer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Company may at any time:
(i) require the Buyer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
8. Price and payment
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Company's published price list in force as at the date of delivery.
8.2 The Company may, by giving notice to the Buyer at any time up to ten Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Company's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
8.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Buyer 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 Goods.
8.5 The Company may invoice the Buyer for the Goods on or at any time after the completion of delivery.
8.6 The Buyer shall pay the invoice in full in pounds sterling and in cleared funds within 20 Business Days of the date of the invoice unless otherwise agreed with the Company in writing. Payment shall be made to the bank account nominated in writing by the Company. Time of payment is of the essence.
8.7 The Company will charge an administration fee of 2.5% of the invoice value in respect of all payments made by credit card.
8.8 Each month, the Company will send all Direct Debit customers two payment schedules, on or about the 1st and 15th:
(a) The first schedule will include all invoices with due dates from the 26th of that month to the 10th of the following month. Payment in respect of these will be collected by Direct Debit on or about the 25th of the same month in which the schedule is issued;
(b) The second schedule will include all invoices with due dates from the 11th of the following month to the 25th of the following month. Payment in respect of these will be collected by Direct Debit on or about the 25th of the month following the month in which the schedule is issued.
8.9 In the event of a Direct Debit failing (except where the Company is at fault), an administration charge of £25 plus VAT and an additional sum as may be necessary to reimburse any charge imposed by the Company’s bank, will be added to the Buyer’s account and will be debited in the next available scheduled payment, together with the Direct Debit discount.
8.10 If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank PLC's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
8.11 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
9. Termination and suspension
9.1 If the Buyer becomes subject to any of the events listed in clause 9.2, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) the Buyer 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 or limited liability partnership) 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 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;
(b) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(d) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
(e) (being a company) the holder of a qualifying floating charge over the Buyer's assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Buyer's assets or a receiver is appointed over the Buyer's assets;
(g) (being an individual) the Buyer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(a) to clause 9.2(f) (inclusive);
(j) the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 9.2(a) to clause 9.2(l), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest.
9.5 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude the Company's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
10.2 Subject to clause 10.1:
(a) the Company shall under no circumstances whatever be liable to the Buyer, 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
(b) the Company's total liability to the Buyer 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 in no circumstances exceed the price of the Goods to which the claim relates.
11. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1 Assignment and other dealings.
(a) The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; 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 or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) 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. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Company.
12.7 Governing law. The 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 the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).