3. DELIVERY, RISK AND TITLE
3.1 Unless otherwise agreed in writing, delivery shall be regarded as having taken place on completion of unloading of the Goods at the agreed delivery address. We will arrange carriage of the Goods to you although you will pay us our agreed packing and delivery charges or, if no such charge has been agreed, our reasonable charge for those items.
3.2 Any dates quoted for delivery of the Goods are approximate only and we will not be liable for any delay in delivery of the Goods however caused. Time for delivery will not be of the essence. Without affecting our other rights, if you fail to take delivery of the Goods at the specified time we may store and insure the Goods and you will reimburse to us on demand all of our reasonable costs in doing so and you will incur a further delivery charge. If delivery is to take place in instalments, each delivery will be a separate contract.
3.3 Risk of loss of or damage to the Goods shall pass from us to you on delivery. You must notify us of any shortages or damage to the Goods within 3 days of delivery. Your failure to do so shall be conclusive evidence that you have accepted the Goods.
3.4 Notwithstanding delivery and the passing of risk in the Goods, legal and beneficial title to the Goods shall not pass to you until we have received in cash or cleared funds payment in full the price of the Goods and all other goods accepted to be sold by us to you for which payment is then due.
4.1 Without affecting our other rights, we may defer or cancel any deliveries of Goods and treat the Contract as cancelled if you:
4.1.1 Fail to make any payment to us on time;
4.1.2 Breach any of the terms or conditions of the Contract; or
4.1.3 Enter or propose to enter into any arrangement with your creditors, become bankrupt or otherwise insolvent, are unable to pay your debts as they become due, have any receiver, administrator or liquidator appointed or any event similar to any of the foregoing happens to you.
4.2 You may cancel the Contract in the event that we materially breach our obligations under the Contract and we fail to remedy the breach within 28 days of your notice in writing requiring us to remedy the breach. Otherwise, you may only cancel the Contract with our agreement in writing.
4.3 If we cancel the Contract under paragraph 4.1 above or if you cancel the Contract otherwise than in accordance with paragraph 4.2 above, you will indemnify us in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by us as a result of cancellation.
5. WARRANTIES AND LIABILITY
5.1 You use the Goods at your own risk. We warrant to you that the Goods:
5.1.1 Will be free from defects in design, material and workmanship for a period of 12 months from the date of delivery; and
5.1.2 Will comply on delivery with all statutory requirements and regulations relating to the sale of the Goods.
5.2 The above warranty is given by us subject to the following conditions:
5.2.1 We shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal usage – this includes any use of the Home Training System by a golf tutor or Professional - or storage conditions, failure to follow our usage instructions (whether oral or in writing), misuse or alteration or repair of the Goods without our prior approval; and
5.2.2 We shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
5.3 Subject as expressly provided in these terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute and common law are excluded to the fullest extent permitted by law.
5.4 Where the Goods are sold under a consumer transaction (as defined by the UK Consumer Transactions (Restrictions on Statements) Order 1976) your statutory rights are not affected by these terms.
5.5 If you intend to make a claim against us which is based on any defect in the quality or conditions of the Goods, such claim shall be notified to us by you within 3 days from the date of delivery or within a reasonable time after discovery of the defect or failure. If you do not notify us accordingly you shall have no entitlement to reject the Goods and we shall have no liability for such defect or failure, and you shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
5.6 Where a valid claim in respect of any of the Goods is made by you against us then we shall, at our option, either repair the Goods, supply replacement Goods or return any monies paid by you in full.
5.7 If any liability of us shall arise, whether in contract, tort (including negligence), at common law, under statute or in any other way to you out of or in connection with the matters contemplated by the Contract, such liability shall be limited to the payment by us of a sum not exceeding the aggregate price payable under the Contract provided always that the foregoing shall not apply to any liability for death or personal injury.
5.8 We will not be liable for any loss of earnings as a result of the Goods not being available for use
5.9 You will indemnify us for all losses suffered by us arising out of your failure to use the Goods in accordance with our instructions and we will not be liable to you for any losses suffered by you arising out of use of the Goods otherwise than in accordance with our instructions.
5.10 We will not be liable to you or be regarded as being in breach of the Contract if there is delay or failure to carry out any of our obligations and the delay or failure arises out of any cause beyond our reasonable control.
5.11 This warranty is not transferable
6.1 You may not assign the benefit of the Contract without our prior written consent.
6.2 Any notice required or permitted to be given under the Contract shall be in writing addressed to the other party at its principal place of business or such other address as may at the relevant time have been notified to the party giving the notice in accordance with this paragraph.
6.3 If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
6.4 We may obtain, hold and disclose information about you for the purposes of performing our obligations to you under the Contract, evaluating your potential financial needs, to prevent and detect fraud, for any purpose required by any regulatory authority, to conduct market research and for marketing to you other products and services which we believe may be of interest to you. We may disclose any information about you, to licensed credit reference agencies, to any regulatory authority and to any person we are considering transferring any of our rights and/or obligations under the Contract. You consent to our using your information in this manner. We may also disclose your information to third parties to enable those persons to market their products and services to you although we will not do this if you notify us in writing that you do not wish us to do so.
6.5 The Contract shall be governed by the laws of England and Wales and in the case of the USA, Florida, and we and you hereby agree to submit to the non-exclusive jurisdiction of these courts in connection with any dispute or other matter arising out of the Contract.
6.6 All Intellectual Property in the Goods shall remain vested in us. You agree that you will keep our Intellectual Property strictly confidential and shall not use the same except for the purposes of the proper use of the Goods.
7. GLOSSARY OF TERMS
7.1 In these General Terms and in the Contract:
“Contract” means the contract between you and us generated by us accepting the offer made by you in your Order, incorporating our Quotation and these General Terms of Sale;
“Goods” means the goods (including any instalment of the goods or any part of them) which the Company is to supply in accordance with the Contract;
“Intellectual Property” means patents, trade marks, service marks, copyright, registered designs, design rights, know how and all other intellectual property rights of any description in any country;
“Order” means your order in writing for Goods;
“Quotation” means our non-binding indication in writing of the terms on which we might, subject to contract, be prepared to supply the Goods;
“we”, “us” or “our” means Explanar Ltd, a limited company with registered number 08215772 whose registered place of business is at 1 Seebeck Place, Milton Keynes, MK5 8FR.
“writing” includes, where the Contract is to be formed using the medium of our website, any form of electronic communication which we may specify for interaction with our website;
“you” or “your” means the person(s) named as the customer(s) on the Order.
The headings in these General Terms are for convenience only and shall not affect their interpretation.
UK Registered Office: 1 Seebeck Place, Milton Keynes, MK5 8FR.