1.1 In these Conditions the following words or expressions shall have the following meanings:
‘the Company’ The Masters Golf Company Ltd of Gordano Gate, Serbert Road, Portishead, North Somerset, BS20 7GG.
(Company Reg no: 2548980) (VAT No: GB536995294) (Email: [email protected])
‘the Purchaser’ the person firm or company buying Goods from the Company;
‘the Goods’ the items forming the subject matter of the contract between the Company and the Purchaser or:
‘Order’ the Purchaser’s instructions to the Company to supply the Goods;
‘Containers’ include boxes, pallets, crates, drums, beams and other containers in which Goods are packed for delivery;
‘these Conditions’ the terms and conditions set out below;
‘the Contract’ the contract for the sale of the Goods.
1.2 Nothing in these Conditions shall exclude or restrict:-
1.2.1 the statutory rights of a Purchaser who deals as a consumer within the meaning of the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999.
Orders from our website are accepted from trade customers only; or
1.2.2 the conditions implied by Section 12 of the Sale of Goods Act 1979.
1.3 Clause headings are for information only and shall not affect (nor be treated or interpreted so as to affect) construction of these Conditions.
2. INCORPORATION OF CONDITIONS
2.1 All Goods are sold or agreed to be sold by the Purchaser subject only to these Conditions which override any other terms or conditions stipulated or referred to by the Purchaser whether in the Order or any document issued by the Purchaser or in any negotiations and so that these Conditions are the only terms or conditions upon which the Company sells or supplies the Goods.
2.2 No variation of these Conditions shall be effective unless made in writing and signed by a duly authorised representative of the Company.
3. ACCEPTANCE OF ORDERS
3.1 No contract shall come into being until the Purchaser’s Order has been accepted by the Company in writing or (if later) until the Goods have been delivered to the Purchaser.
3.2 The Purchaser shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Purchaser, and for giving the Company any necessary information relating to the Goods within sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Purchaser, the Purchaser shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of, any claim for infringement of any patent,copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Purchaser’s specification.
3.4 The Company shall not be bound to accept changes to the specification of the order after acceptance but shall endeavour subject to agreement of any necessary revision of price and delivery date to meet any reasonable request.
3.5 The Purchaser must provide the Company with all information necessary to enable the Company to proceed with the Contract and such information must be supplied with the Purchaser’s written order.
3.6 Orders are accepted strictly subject to availability of the Goods at the time of dispatch.
3.7 Each Order constitutes a separate Contract between the parties. The Company reserves the right to deliver the Goods by instalments and in such event each instalment shall be deemed to be a separate contract provided always that deliveries of further instalments may be withheld until the Goods comprised in earlier instalments have been paid for in full.
3.8 The Company shall not accept orders of less than £10.00 in value, any order placed valued less will be invoiced at £10.
3.9 To amend or cancel an order prior to shipment, a ‘cancellation reference number’ must be obtained from the sales office when making the amendment or cancellation.
4.1 The price of the Goods shall be the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of acceptance of the order. All prices quoted are valid for 14 days only or until earlier acceptance by the Purchaser, after which time they may be altered by the Company without giving notice to the Purchaser.
4.2 Where at the Purchaser’s request the Company undertakes urgent delivery the Company reserves the right to make an exceptional charge for carriage or for such delivery irrespective of the value of the Order in question.
4.3 The Company may at any time before delivery vary the price of the Goods by notice to the Purchaser. The Purchaser may within one week of receipt of such notice cancel the Order for the Goods, but if delivery of the Goods is to be made by instalments the Purchaser will be entitled to cancel only the undelivered portion of the Order. No other remedy shall be available to the Purchaser in respect of such variation in price. If the Purchaser does not cancel the Order within the one week period, the varied price shall apply to the Contract except as regards those of the Goods already delivered.
5.1 Unless otherwise agreed in accordance with Clause 2.2, all payments for goods must be received on or before the thirtieth day following the date of the invoice being the due date for payment. Any discounts applicable will have actual amounts and date by which payment must be received by the Company, shown on invoice.
5.2 Payment shall be deemed not to have been made until any and all cheques, bankers drafts and bills by which payment is to be effected have been cleared or honoured (as the case may be).
5.3 Without prejudice to any other of its rights, the Company reserves the right to charge interest on payments outstanding after the due date for payment at the rate (both before and after judgement) of 2 per cent per month (including interest) from the due date for payment until receipt by the Company of payment in full and to recover from the Purchaser on a indemnity basis all costs incurred in the recovery of such overdue sums. The Company reserves the right to reduce or cancel the amount of interest payable hereunder and the Purchaser acknowledges that any such action or omission for whatever reason shall not amount to a waiver of Company’s rights hereunder or as a course of conduct varying these Conditions.
5.4 Should any Customer’s cheque or Direct Debit payment be returned or represented by our bankers, then a service charge of £20 per presentation will be levied against the Customer.
5.5 All payment received by the Company should equal the net value of the invoice after settlement and not be affected by any bank charges.
5.6 Retro will be paid by way of credit note at the end of the term (as specified on The MasterPro agreement form) to accounts achieving their purchase target and falling in current trading terms and credit limits.
5.7 All payments made by credit card made after 28 days from invoice date will incur a 2% interest charge.
6.1 The Company will endeavour to provide the delivery of Goods within 24 hours, however any dates times or periods for delivery of Goods quoted by the Company are estimates only and the Company shall not be liable for failure to meet such estimates or for any costs charges or expenses incurred as a consequence of such failure and accordingly the Purchaser shall not be entitled to refuse to accept Goods or to determine the contract merely because of such failure.
6.2 Delivery shall take place:
6.2.1 where the Company undertakes delivery, when the Goods are delivered to the place shown on the Purchase Order Form or any other place stipulated by the Purchaser for delivery; or
6.2.2 where the Purchaser undertakes to collect the Goods or where the Goods are sold “ex works” (Incoterms 2000) to a Purchaser outside England, Scotland, Wales and Northern Ireland when they are made available to the Purchaser for collection.
6.3 The Goods shall be at the Purchaser’s risk from the time of delivery as defined in Clause 6.2 even if the Purchaser wrongfully fails to take delivery at the time when the company has tendered delivery of the Goods.
6.4 The company shall not be liable for and the Purchaser shall fully indemnify the Company against any and all costs charges and expenses incurred due to delay in delivery of the Goods where such delay is a result of the Purchaser’s failure to provide as and when required all instructions licences guarantees deposits and all such information and other assistance as may be reasonably required by the Company.
6.5 If the Company does not receive forwarding instructions sufficient to enable dispatch of the Goods to be made within 14 days after notification that the Goods are ready for dispatch the Purchaser shall be deemed to have taken delivery and the Company may (without prejudice to any of its other rights) dispose of the Goods ordered for storage of the Goods at the premises of the Company or elsewhere as the Company may determine at the cost of the Purchaser.
6.6 If the Purchaser fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Purchaser’s reasonable control or by reason of the Company’s fault) then without prejudice to any other right or remedy available to the Company, the Company may:
6.6.1 store the Goods until actual delivery and charge the Purchaser for the reasonable costs (including insurance) of storage: or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price under the Contract or charge the Purchaser for any shortfall below the price under the Contract.
6.7 The Company will levy a charge on orders less than £50.00 for UK Mainland. Details of which will be supplied to the buyer upon request.
7. LOSS DAMAGE OR NON-DELIVERY
7.1 If the Company fails to deliver the Goods for any reason other than any cause beyond the Company’s reasonable control or the Purchaser’s fault, and the Company is accordingly liable to the Purchaser, the Company’s liability shall be limited to the excess (if any) of the cost to the Purchaser (in the cheapest available market, of similar goods to replace those not delivered over the price of the Goods.
7.2 Where the Purchaser undertakes to collect the Goods the Company shall not in any circumstances be liable for any damage from whatever cause which arises while the Goods are in transit.
7.3 Where the Company undertakes carriage:
7.3.1 Notice of any claim relating to shortage of or damage to the Goods must be made to the Company in writing within 48 hours of their receipt. In the event of loss or non-delivery of the Goods the Purchaser must notify the Company in writing within 2 working days of receiving the delivery note invoice in respect thereof.
7.3.2 The Company will consider claims only if the above conditions are met and the claim is signed by the Purchaser and is accompanied by full particulars giving the Purchaser’s order number, the Company’s invoice number and a copy of the delivery note which should bear an appropriately qualified endorsement and be signed by the Purchaser.
8. RETURNS FOR CREDIT OR REPLACEMENT
The return of Goods by the Purchaser for credit or replacement will not be accepted by the Company without the Company’s prior written authorisation and then only if the Goods are in a saleable condition of which the Company shall be the sole judge. Where Goods so returned are accepted by the Company, it shall be for the Company, in its absolute discretion, to determine whether to give credit or a replacement quantity of the Goods.
8.1 Goods returned in pristine condition for credit ‘not required’ will be subject to a 20% restocking charge.
8.2 Goods returned in pristine condition for credit ‘not required’ but with damaged packaging will be subject to a repackaging charge plus a 20% restocking charge.
8.3 Goods returned in non-pristine condition for credit ‘not required’ will be deemed damaged or used and therefore will be returned to the returner.
8.4 We will repair/replace individual faulty components.
8.5 Any guarantee period for items sold is deemed to be from the point of sale to your customer. A valid proof of date of sale to your customer must be provided for such items.
9.1 The Company warrants that to the best of its knowledge the Goods are of merchantable quality. Save as aforesaid and save as regards any specific warranty (or guarantee) given in writing by the Company, all other
conditions guarantees warranties whether express or implied, by statute, common law or otherwise including (but without prejudice to the generality of the foregoing) conditions guarantees and warranties as to quality fitness for use under any conditions (whether known or made known to the Company or not) are hereby excluded.
9.2 The Company shall be under no liability in contract or in tort for any indirect consequential loss (including but without limiting the generality of the foregoing economic loss, loss of profits, loss of use or loss of
production) arising out of or in conjunction with the contract for the supply of the Goods between the Company and the Purchaser.
9.3 The Company will only accept liability for direct physical injury to persons or defects in the Goods caused by the negligence of the Company or its servants (being negligence as defined in Section 1 of the Unfair Contract Terms Act 1977) provided that the liability of the Company under these Conditions in respect of any defects in the Goods shall in no case exceed the contract price for the Goods and it is hereby agreed for the avoidance of doubt that (except insofar as it is expressly otherwise provided in these Conditions) the Company shall in no circumstances be liable for any costs charges damages losses (including loss of profit) or expenses of any kind arising otherwise than directly out of any such negligence as aforesaid.
9.4 The application use and/or processing (where permitted) of the Goods is the absolute responsibility of the Purchaser. Any technical and other advice information provided by the Company, whether verbally, in writing or by way of tests or trials, is given without warranty.
10. RETENTION OF TITLE
10.1 Whilst risk in the Goods supplied to the Purchaser under the Contract shall pass on delivery legal and beneficial ownership of the Goods shall remain with the company until such time as the Company has received payment in full in respect of all sums owing from the Purchaser to the Company whether under the Contract or otherwise.
10.2 Notwithstanding terms of payment specified herein or elsewhere payment for all Goods supplied to the Purchaser shall become due immediately if the Purchaser fails to pay for the Goods on the due date (or fails to pay any instalment in which case the whole outstanding balance shall immediately become due) or if the Purchaser has been declared bankrupt or enters into an arrangement with his or her creditors or, being a
company, goes into voluntary or compulsory liquidation, or enters into an arrangement with its creditors or has an administrator or an administrative receiver or receiver and manager appointed over all or part of its assets or if otherwise declared insolvent or prohibited from trading, and the Purchaser shall immediately notify the Company thereof and in such circumstances:
10.2.1 the Purchaser shall not attempt to sell any Goods supplied by the Company to any other party;
10.2.2 the Purchaser shall not part with possession of any Goods which have been delivered by the Company to the Purchaser; and
10.2.3 the Company shall have the right, without prejudice to any other remedies, to withhold delivery of any undelivered Goods and to stop any Goods in transit.
10.3 If payment for any goods supplied by the Company is overdue whether in whole or in part and any goods have been delivered to the Purchaser the Company may without prejudice to any of its other rights enter upon the Purchaser’s premises to recover and/or re-sell the Goods or such of them as the Company in its absolute discretion may designate as necessary to recover the amount of payment overdue together with the Company’s reasonable costs incurred in giving effect to its rights hereunder and for these purposes the Purchaser hereby irrevocably authorises the Company to enter and take all necessary and reasonable steps upon the premises of the Purchaser.
10.4 At all times following delivery of the Goods and preceding payment as aforesaid the Purchaser is and shall remain a fiduciary for the Company in respect of the Goods and shall store the Goods separately to any goods which belong to the Purchaser or any third party and shall clearly mark the Goods in such a way as to enable them to be identified as being the property of the Company.
10.5 The Purchaser shall have the power to re-sell or otherwise deal with the Goods in the ordinary course of business in the name of the Purchaser on conditions that;
10.5.1 such resale or other dealings shall give rise to no obligations whatsoever whether contractual or otherwise on the Company;
10.5.2 the proceeds of resale or other dealings shall in any period preceding payment of the full price as aforesaid be held by the Purchaser in a clearly identifiable account separate from the Purchaser’s own and from those of third parties and the beneficial interest of the Company shall attach to the proceeds of resale and the Company shall have the right to trace the proceeds of sale;
10.5.3 the separate account into which all such proceeds of resale are to be placed shall not be permitted to become overdrawn; and
10.5.4 the Purchaser shall incorporate into any dealings with a sub-buyer a term to the effect that legal ownership of the Goods subject to that sub-sale shall not pass on to the sub-buyer until payment has been received in full by the Purchaser.
10.6 Each Sub clause 10.1, 10.2, 10.3, 10.4 and 10.5 shall be construed and receive effect as a separated clause and if for any reason whatsoever any such clause is rendered invalid and unenforceable according to its terms the others shall remain in full force and effect.
11. INTELLECTUAL PROPERTY
11.1 No warranty or representation is given by the Company that the Goods do not infringe any Letters Patent, Trade Marks, Registered Designs, Copyright or other intellectual property rights.
11.2 The use of the Company’s trade marks requires the prior written approval of the Company.
12. FORCE MAJEURE
The Company shall not be liable or deemed to be in breach of the Contract in any way for any loss or damage arising directly or indirectly, through or in consequence of delivery of the Goods being prevented or delayed by happenings or occurrences due to or by reason of any matters or things beyond the control of the Company including (but without limitation) mobilisation, hostilities, war (whether declared or not), government action, Act of God, riots, lockouts, strikes or disturbance wherever taking place, accidents, fire, flood, late provision to the Company of any information or instructions pertinent to the fulfilment of the contract by the Company or any other causes or any circumstances whatsoever beyond the Company’s control.
The Purchaser may cancel or suspend the Contract with the Company only with the Company’s prior written consent which shall be conditional upon the Purchaser making payment to the Company of any reimbursement which the Company may require to compensate for such cancellation.
14.1 If the Purchaser shall default in its obligations under or commit a breach of these Conditions or of any other of its obligations to the Company; or if the Purchaser suffers any judgement or any distress, seizure or execution to be levied against it or if the Purchaser shall make or offer any arrangement or composition with creditors, or commit any act of bankruptcy, or if any statutory demand or petition shall be presented or made against it, or if the Purchaser is a limited company and any resolution or petition to wind up the Purchaser’s business (other than for the purpose of bona fide amalgamation or bona fide reconstruction) shall be passed or presented, or any Petition for the administration of the Purchaser shall be presented or if a receiver or administrative receiver is appointed over its undertaking property or assets or any part thereof, then without prejudice to any other right or remedy available to the Company the Company may forthwith without notice:
14.1.1 cancel suspend or determine the Contract or any unfulfilled part thereof;
14.1.2 halt any Goods in transit and decline to make further deliveries except upon receipt of advance payment or satisfactory security;
14.1.3 either by an agent or itself have access to the Purchaser’s premises for the protection, removal, realisation and disposal of any Goods at any time and from time to time in which the property shall not have passed from the Company to the Purchaser.
14.2 The granting by the Company to the Purchaser of time or any other indulgence forbearance or concession shall in no way prejudice or constitute a waiver of the Company’s entitlement to enforce any of its rights under the Contract.
14.3 If the Company terminates the contract in accordance with this Clause, then, without prejudice to any other rights the Company may have, it shall be entitled to retain any advance payment made by the Purchaser.
Any notices required to be given under these Conditions must be in writing and either posted first class pre-paid to the address of the receiving party as shown on the Order or the price list of the Company as appropriate or sent by telex or telefacsimile to the appropriate facility number. Any notice which is posted will be effective 48 hours after posting and any notice sent by telex or facsimile will be effective on the commencement of next business day following transmission. In proving postal service it will be sufficient to show that the envelope was properly addressed and put into the post and in proving service by telex or facsimile transmission it will be sufficient to show that the correct answer back or confirmation of correct receipt slip was received as appropriate.
16. GENERAL AND PROPER LAW
16.1 The contract is personal to the Purchaser which shall not assign or charge the benefit and/or burden thereof whether in whole or in part without the Company’s prior written consent.
16.2 These Conditions represent the entire agreement between the parties and supersede all earlier warranties, representation and statements (whether oral or in writing) and may only be varied or amended by agreement in writing between the parties.
16.3 The validity construction and performance of the Contract between the parties will be governed by English law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English courts.
16.4 Nothing in this Agreement is intended to confer any benefit on any third party whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.