Terms and Condition of Sale
In these Conditions, the following terms shall have the following meanings: "ACCESSORY PRODUCTS" means those items of golf accessories, being primarily soft goods such as gloves and bags, which are identified in the Price List from time to time; "BUYER" means person whose order for the Goods is accepted by the Seller; "DELIVERY POINT" means the point specified for delivery in the Contract. If no delivery point is agreed, then delivery shall take place at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection; "EVENT OF INSOLVENCY' shall mean, in relation to a party, that such party makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or an encumbrance takes possession, or an administrator, administrative receiver or receiver is appointed, of any of the property or assets of that party; or any creditor of such party applies for, convenes a meeting for the purposes of commencing, or takes any other steps in order to initiate, any such procedure; or that party ceases, or threatens to cease, to carry on business; or that party suffers any similar or analogous event in any jurisdiction in consequence of debt; or (in the case of the Buyer), the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer; "GOODS" means the goods or products (including without limitation the Accessory Products), which the Seller is to supply, whether customised or not, in accordance with these Conditions; "SELLER" means Srixon Sports Europe Ltd, a company incorporated under the laws of England and Wales under company number 04244454; "CONDITIONS" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller; "CONTRACT" means the contract for the purchase and sale of the Goods, which shall in all cases be governed by the Conditions; "INCOTERMS" means the Incoterms 2010, being the current international rules for the interpretation of trade terms of the International Chamber of Commerce; and "WRITING" includes facsimile transmission and comparable means of communication.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation of the Seller, which is accepted by the Buyer, or any written or verbal order of the Buyer which is accepted by the Seller, which shall in any event be subject to these Conditions. These Conditions shall prevail over any other purported terms and conditions, whether on purchase orders or otherwise.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller. Otherwise, the employees or agents of the Seller are not authorised to make any representations or vary the Contract in any way.
2.3 Any quotation for Goods given by the Seller shall be valid for a period of 30 days only from the date of its issue, and if not accepted within that period shall be deemed withdrawn.
2.4 On receipt of an order, the Seller shall, if it considers necessary, conduct a credit check on the Buyer. The Seller reserves the right to cancel the order or terminate any Contract without liability to the Buyer if the credit check reveals that the Buyer is unable or is unlikely to be able to pay for the Goods.
2.5 All Goods ordered are intended exclusively for sale within the European Union only (unless otherwise authorised by the Seller in writing). The Seller reserves the right to refuse to fulfil any orders or terminate any Contract without liability to the Buyer, where the Seller knows or has reason to believe that the Buyer has sold (or intends to sell) the Goods directly or indirectly outside the European Union.
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order and for giving the Seller any necessary information in good time to enable the Seller to perform the Contract. No order submitted by the Buyer shall be deemed accepted by the Seller unless and until confirmed in Writing by the Seller.
3.2 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller. In the event that cancellation is accepted, it shall be conditional upon the Buyer paying the full costs of the Goods and time spent to fulfil any Contract up to the effective date of cancellation, including without limitation the cost of design work, tool, dyes, special equipment etc purchased or manufactured specifically for execution of the Contract in question.
3.3 Each delivery of Goods shall be considered a separate Contract for the purposes of this Clause 3.
3.4 Where the Buyer requests the Seller to produce customised Goods, it shall be the Buyer's duty, when supplying the Seller with such specifications or designs to which the Seller shall manufacture Goods, to ensure that it has considered such specifications or designs, and their fitness for the Buyer's intended purpose. The Seller shall have no liability in this regard.
4. Price of the Goods
4.1 Unless otherwise agreed by the Seller in writing, the unit price for the Goods shall be the price set out in the Seller's price list, being the current version as published on the date of delivery or deemed delivery (the "Price List"). Prices shown in the Seller's Price List are stated exclusive of value added tax, which, where applicable, the Buyer shall be additionally liable to pay the Seller. The rate of value added tax applicable shall be the rate in force on the date of invoicing.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller such as fluctuation in relevant exchange rates or the increased cost of materials and/or wages.
4.3 Unless otherwise notified by the Seller to the Buyer, the price for the Goods includes delivery to the Delivery Point, except as follows:
4.3.1 a delivery charge (plus any applicable value added tax on such charge) will be charged for any order for Goods with a value falling below a minimum threshold set by the Seller from time to time, unless this is expressly waived by the Seller. For current minimum thresholds and applicable delivery charges please contact the Seller at email@example.com.
4.3.2 the Seller reserves the right to impose delivery charges for express deliveries requested by the Buyer. This will vary depending on the weight of the order and the agreed Delivery Point.
4.4 The Seller's Price List may be changed at any time without notice. In the event of a change in the prices, any order received no more than ten (10) days from the date of effect of the new prices shall be invoiced on the basis of the prices as set out in the old prices.
4.5 The Buyer shall not be entitled to discounts of whatever nature except subject to written confirmation from the Seller, at the Seller's sole discretion. Furthermore, discounts shall be granted subject at all times to the Buyer's compliance in every respect with these Conditions throughout the whole period prior to the granting of such discounts.
5. Terms of Payment
5.1 The Seller shall be entitled to invoice the Buyer for the price of all Goods supplied on or at any time after dispatch of the Goods.
5.2 The Buyer shall pay the price of the Goods within 30 days from the date of the invoice, unless otherwise stated in Writing at the Seller's sole discretion. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 When the Buyer applies to the Seller to open an account or otherwise makes an order for Goods, the Seller may check the personal and/or business records of the Buyer and the Buyer's business partners (where the Buyer is applying for an account with a business partner)., In particular (without limitation), the Seller may perform a "credit search" to check details of the Buyer's credit history with certain credit reference agencies (CRAs). If the Seller performs a "credit search" with a CRA, the CRA will keep a record of that search that (for a short period of time) can be seen by third parties and may affect the Buyer's ability to get credit elsewhere. Where the Buyer is applying for an account with a business partner a financial link between the Buyer and business partner will be created at the CRA. The Seller will make checks to assess all applications for credit including (without limitation), fraud and identity checks. The Seller will check the Buyer's details with fraud prevention agencies and CRAs to (among other things) check identity and application details and trace and recover debts. The Seller reserves the right to make periodic searches at CRAs and FPAs to manage the Buyer's account with the Seller. For more information on how the Buyer's data may be used, please contact the Seller at firstname.lastname@example.org.
5.4 In the event that the Seller accepts in Writing payment by instalments, failure to pay one such agreed instalment shall cause the whole amount outstanding to be immediately payable.
5.5 If the Buyer fails to make any payment on the due date, without prejudice to any other right or remedy available to the Seller, all invoices issued by the Seller to the Buyer shall immediately become due and payable. The Seller shall be entitled (i) to cancel the contract or suspend any further deliveries to the Buyer, (ii) appropriate any payment made by the Buyer to the Seller under any other contract between them to such Goods as the Seller may think fit, notwithstanding any purported appropriation of any payment by the Buyer, and/or (iii) charge the Buyer the full cost of recovery of sums outstanding as well as interest in accordance with Clause 5.7 below.
5.6 If the Buyer has borrowed from the Seller and does not make payments that are owed, the Seller will trace the Buyer's whereabouts to recover the debt(s).
5.7 If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable under the Late Payment Commercial Debts (Interest) Act 1998 (as may be amended from time to time) to pay interest (plus a fixed sum and costs) to the Seller on such sum from the due date of payment until payment is made in full, whether before or after judgment.
5.8 Payments shall be made by the Buyer without any deduction whatsoever, whether by set-off, counter-claim or otherwise unless otherwise agreed in Writing by the Seller.
5.9 The Seller has the right, in relation to certain Buyers, taking into account financial information gathered by the Seller regarding that Buyer, to change payment terms and credit limits in relation to that Buyer, require payment in advance as a pre-condition of delivery and/or to require other financial guarantees. In the event that the Buyer does not accept any such of the Seller's requirements, the Seller shall be entitled to cancel all undelivered orders and Contracts without incurring any liability in respect to the Buyer.
5.10 All payments made by the Buyer on credit card will be subject to a handling fee of 2% of the transaction value.
5.11 All payments returned through 'lack of funds' will be subjected to a handling fee.
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Delivery Point.
6.2 While every reasonable effort will be made to fulfil delivery dates, any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. In particular, delivery is subject to the relevant lead-times on components that may need to be ordered by the Seller to enable it to manufacture the Goods. Time for delivery shall not be of the essence of the Contract.
6.3 The Buyer has full responsibility for inspecting the Goods upon delivery, and a delivery note signed by the representative of the Buyer shall constitute full acceptance by the Buyer of the Goods. A delivery note which is signed as unchecked will not be accepted as such.
6.4 If, on delivery, the Buyer finds that some of the Goods fail to meet with agreed standards, and as a result the Buyer wishes to reject the Goods, then (i) any rejection of the Goods must be in accordance with these Conditions and in accordance with the timescales set out in Clause 8.2 and (ii) the Buyer shall not be entitled to reject the whole delivery consignment, but only that percentage of the Goods which is sub-standard.
6.5 The Seller reserves the right to make instalment deliveries of the Goods ordered under each Contract. If Goods are delivered in instalments, the Seller shall be entitled to invoice for each instalment as and when that instalment is delivered, and payment shall be due in respect of each instalment delivered notwithstanding non-delivery of the other instalments.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions (including a correct delivery address) to ensure delivery in accordance with these Conditions, then, without prejudice to any other right or remedy that the Seller may have, the Seller may (i) store the Goods until actual delivery is made to the Buyer and charge the Buyer for its costs (including insurance) of storage and (ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.7 Where the Seller is exporting the Goods from the United Kingdom to any Delivery Point outside the United Kingdom, the Seller shall be under no obligation to give notice to the Buyer under Section 32(3) of the Sale of Goods Act 1979 regarding insurance of the Goods in transit.
7. Risk and Title
7.1 Risk of damage or loss of the Goods shall pass to the Buyer on delivery to the Buyer at the Delivery Point.
7.2 Notwithstanding delivery and the passing of risk of the Goods, or any other provision of these Conditions, title of the Goods shall remain with the Seller and shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of all sums due whether for the Goods in question or otherwise, including (without limitation) amounts owed but not yet payable and/or any interest, fixed sums and/or costs under Clause 5.7.
7.3 Until such time as title in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods properly stored, protected and insured to their replacement value.
7.4 Until such time as title in the Goods passes to the Buyer: (i) the Seller shall have the absolute authority to retake possession of the Goods and/or sell, dispose of, or otherwise deal with the Goods, or any part of them, at any time (Retention of Title); (ii) for the purposes specified in Clause 7.4(i), the Seller or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises where the Goods are stored, displayed, or kept or reasonably believed by the Seller to be stored, displayed or kept; (iii) the Seller shall be entitled to seek a Court injunction to prevent the Buyer from selling transferring, disposing of, or otherwise dealing with the Goods; and (iv) the Buyer shall keep the Goods separate from other products in its possession and shall not remove any identifying marks placed on the Goods by the Seller or incorporate such marks in any other product.
7.5 (i) Without prejudice to Clause 7.2, the Buyer shall be entitled to sell the Goods in the ordinary course of its business as principal. Such right of sale shall terminate automatically if the Buyer suffers an Event of Insolvency. If the Buyer suffers an Event of Insolvency, the Buyer shall notify the Seller forthwith. (ii) In the event that the Buyer's right of sale is terminated under Clause 7.5(i) above, then notwithstanding such termination, the Seller shall be entitled, at its sole discretion, to authorise the Buyer in Writing to sell or otherwise deal with the Goods on its behalf and as its fiduciary agent, in which case the proceeds of such sale or dealing shall be held by the Buyer in a separate account on trust for the Seller. For the avoidance of doubt, nothing in this Clause 7.5 shall prejudice the right of the Seller to repossess the Goods under Clause 7.4.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the Seller's property. However, if the Buyer should do so in breach of this obligation, all sums owing by the Buyer to the Seller (without prejudice to any of the Buyer's other rights or remedies) shall immediately become due and payable.
7.7 The Seller shall be entitled to sue the Buyer for the price of the Goods once payment falls due notwithstanding that title to the Goods remains with the Seller pursuance to these Conditions.
7.8 In the event of any seizure of the Goods the Buyer shall inform the Seller thereof forthwith so as to enable it to oppose such seizure within time limits set.
7.9 If the Buyer is a tenant of the premises in which Goods are stored, the Buyer shall inform the landlord by registered letter with acknowledgement of receipt that the Goods are encumbered by a retention of title clause.
7.10 All designs, tools, dyes etc. used in the manufacturing process remain the Seller's property, whether or not a charge is made towards their cost. No ownership of any intellectual property that the Seller may develop (whether in the form of copyright, designs, know-how or other similar rights of whatever nature) in the course of fulfilling any Orders shall be deemed to pass to the Buyer unless specifically assigned by written agreement.
7.11 Any display stands provided by the Seller are designed for the exclusive use of the Goods ordered by the Seller and remain at all times the property of the Seller. If the commercial relationship between the Buyer and the Seller terminates, the Buyer shall return such display stands to the Seller at its own cost.
7.12 The Seller reserves the right to specify the layout in which the Goods are to be displayed, in which case the Buyer shall comply with the Seller's reasonable requirements.
8. Warranties and Liabilities
8.1 The Seller warrants to the Buyer that on delivery, the Goods shall correspond in all material respects with description.
8.2 Any claim by the Buyer which is based on (i) a non delivery of all or any part of a consignment of Goods and/or (ii) (subject to Clause 8.3) any defect in the quality, condition, description or quantity of the Goods, must be notified to the Seller in writing by fax within 5 working days (or in the event of non-United Kingdom resident, Buyers 10 working days) of the date of the relevant invoice or within 5 working days of the date of knowledge of such non-delivery, whichever is sooner. Any such claim must be as a result of an inspection of the delivery consignment in the presence of the relevant delivery agent, where possible (and endorsed by the relevant delivery agent, where such agent was present). The notification by fax must give details of the relevant claim, and a copy of such claim must be supplied to the relevant carrier within 5 working days of the date of delivery. If the Buyer does not comply with these procedures, the Buyer shall not be entitled to reject the Goods for defects or make a claim for whole or partial non-delivery, the Seller shall have no liability for such defect or failure (except as provided pursuant to Clause 8.3), and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.3 The Seller also undertakes that it will honour any standard express written statement of warranty regarding Goods which is given by the Seller in relation to particular Goods.
8.4 The Seller's warranties in Clauses 8.1 and 8.3 do not apply (without limitation) in relation to:
(a) any faults in customised Goods due to their order specification;
(b) any misuse of the Goods or use of the Goods other than for the purposes for which they were reasonably intended by Customer or any end user;
(c) any use of the Goods contrary to the instructions for use shown on the Goods or on their labelling, packaging or in any other documentation dispatched with the Goods or otherwise provided by the Seller;
(d) visible defects in the Goods which should have been apparent on delivery and inspection of the Goods by the Buyer; and/or
(e) normal wear and tear of the Goods.
8.5 If Goods are manufactured to the Buyer’s design or specification, the Buyer warrants that it has all necessary rights to instruct the Seller to do so, and the Buyer will indemnify the Seller for all claims, damages, losses, costs and liabilities in respect of any claim made against the Seller that the design or specification infringes, or that the Goods themselves (as a result of such design or specification) infringe or that the use or resale of the Goods infringes patent, copyright, design, trade mark or other industrial, intellectual property rights or other third party rights of whatever nature.
8.6 The Buyer shall return Goods to the Seller for inspection where making a claim for breach of warranty pursuant to Clause 8.1 and the Seller further reserves the right to request return of Goods (at the Buyer’s expense) where one of the Buyer’s customers makes a claim under a standard warranty pursuant to Clause 8.3. The Buyer shall contact the Seller prior to making any returns. The Seller shall have the right to specify the method of packing and mode of delivery of such Goods. The Seller shall also have the right to issue an authorisation voucher for return of Goods, showing the reference numbers, quantity size and colours or other specification of the Goods identified by the Buyer when making the claim. If the Seller has issued an authorisation voucher, no returns shall be permitted without such authorisation, and any returns shall not be deemed to satisfy the conditions of warranty. Any authorised return shall occur within no more than seven (7) days of the date of authorisation, as issued by the Seller.
8.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality, condition, description or quantity of the Goods is notified to the Seller in accordance with these Conditions (whether pursuant to Clause 8.1 or 8.3), the Seller shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but this shall be the Buyer’s sole remedy and the Seller’s sole and exclusive liability in this regard.
8.8 Where Goods are found to have been supplied in compliance with these Conditions and have been unreasonably returned, the Seller reserves the right to charge an administration fee of up to 20% of the price of the Goods ordered.
8.9 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by the statute or common law or otherwise in any way, whether as to quality, fitness for purpose or otherwise, are excluded to the fullest extent permitted by law. For the avoidance of doubt, the condition implied by section 12 of the Sale of Goods Act 1979 is not excluded from these Conditions.
8.10 Except in respect of death or personal injury caused by the Seller’s negligence or for fraudulent misrepresentation (in which case liability is not excluded or limited):
(a) the Seller shall not be liable to the Buyer for any loss of profits of business opportunities (whether direct or indirect) or for any indirect special or consequential loss of damage, costs, expenses or other claims for compensation whatsoever (whether caused by breach of contract, negligence of the Seller, its employees or agents or otherwise howsoever) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer; and
(b) the entire liability of the Seller under or in connection with the Contract for any one claim or series of related claims shall not exceed the price paid for the affected Goods under the relevant Contract, except as expressly provided in these Conditions.
9. Insolvency of Buyer
9.1 If the Buyer suffers an Event of Insolvency, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer. If the Goods have been delivered but not paid for: (i) the price shall become immediately due and payable and if payment for those Goods remains outstanding the Seller shall be entitled (in its absolute discretion) to claim/recover the Goods pursuant to Clause 7.4 or authorise the Buyer to sell or otherwise deal with the Goods (pursuant to Clause 7.5(ii), notwithstanding any previous agreement or arrangement to the contrary.
10.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of the Incoterms and these Conditions, the latter shall prevail.
10.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision
10.4 This agreement is governed by, and shall be construed, in accordance with English law. Both parties agree that, for the sole benefit of the Seller that, subject as provided below, 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 this agreement or its subject matter or formation. Nothing in this Clause 10 shall limit the right of the Seller to take proceedings against the Buyer in relation to an action to recover a debt from the Buyer arising under any Contract in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
10.5 The Seller shall be entitled to vary these Conditions by giving notice in Writing to the Buyer of the variation and the variation shall have effect seven (7) days from the date of this notice.
10.6 The Seller shall not be liable to the Buyer or be deemed in breach of the Contract by reason of any delay in performing or any failure to perform any of its obligations in relation to the Goods or under these Conditions if the delay or failure was due to any cause beyond its reasonable control (a "force majeure event"). If any force majeure event prevents the Seller from performing the Contract in accordance with its terms for more than seven (7) days this Contract may be terminated by either party giving notice in Writing to the other.
10.7 If any term of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, this shall not affect the validity of the other terms of these Conditions and the remainder of the term in question (if applicable), which shall continue to apply.
10.8 These Conditions and the Contract shall only be enforceable by the parties to it, and not by any third parties.
10.9 The Buyer shall not be entitled to assign this Contract or any part of it without the prior consent in Writing of the Seller. However, the Seller may assign this Contract or performance of it to any third party on giving notice in Writing to the Buyer.
10.10 The Buyer recognises that there is no transfer or licence of intellectual property to it from the Seller by virtue of this Contract. In particular, the Buyer does not receive a licence to use the Seller's (or its licensors’) trademarks and agrees that it shall not register, attempt to register or in any way claim or purport to claim ownership over any such trademarks anywhere in the world. The Buyer shall notify the Seller immediately upon becoming aware of any unauthorised use of any of the Seller's trademarks, and shall give the Seller all reasonable assistance that the Seller may require in pursuing any claim in defence of such unauthorised use.
10.11 Words shown in italics have the meaning given by the UK Data Protection Act 1988. Data relating to individuals within the Buyer's organisation ("personal data") may be processed by the Seller as data controller for the purpose of carrying out the Seller's business and will be held securely in confidence. The Seller may disclose such personal data to third parties such as insurers, credit, insurers, credit reference agencies and other carefully selected parties, who may process such personal data as data controllers for the purpose of carrying out insurance, risk assessments, credit management and other associated activities. The Seller may also receive personal data on individuals within the Buyer's organisation from such third parties. Such personal data may be processed within or outside the European Economic Area, but always in strict compliance with the Acts. The Seller or such third parties may contact such individuals within the Buyer's organisation with details of other products in writing, electronically, by telephone or by other means. By providing the Seller with such personal data, the Buyer consents (on its own behalf, and further warrants that it has obtained the consent of relevant individuals in its organisation) to such processing, as described in these terms. If individuals within the Buyer's organisation object to processing as described in these terms, please notify the Seller immediately. Such individuals have the right of access to personal data held about them by the Seller, and have the right to rectify such data if inaccurate or processed unfairly. If any such individuals wish to exercise these rights, please write to Seller with details of the relevant request.
10.12 If in the course of fulfilling any Contract, where the Seller acts as a data processor for the Buyer, the Seller agrees that, in relation to any personal data received from the Buyer, it shall only process such personal data as reasonably necessary for the purposes of fulfilling the Contract and it shall take appropriate technological and organisational measures to protect that data from accidental loss or destruction or from unauthorised access or disclosure.