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In these conditions:-
"The company" shall mean Mizuno Corporation (UK), Mizuno House, 612 Reading Road, Winnersh, Wokingham, Berkshire RG41 5HE. ‘The buyer’ shall mean the company, firm or individual agent specified overleaf. ‘The goods’ shall mean the products including all golfing and sports accessories to be supplied by the company.
All orders are accepted only on the terms set out below. The buyer accepts that these terms shall govern relations between himself and the company to the exclusion of any other terms. No variation or qualification of these terms or of the Contract shall be valid unless agreed in writing by one of the Senior Managers or by the General Manager of the company.
The buyer hereby acknowledges the exclusive nature of the goods and the benefits accruing to it from the company’s careful selection of its retail outlets. The goods supplied by the company shall only be sold by the buyer to the general public through the buyer’s own retail outlets. The buyer shall not, without the prior written consent of the company, sell or otherwise dispose of the goods to any other wholesale or retail outlet or other distributor or by mail order. Breach of this condition shall entitle the company to cease supplying the buyer with any further goods, whether or not the same have been ordered.
The buyer must operate a genuine permanent golf/sports retail premises, where consumers may view, examine, test, and purchase Mizuno products.
The buyer must employ enough staff suitably knowledgeable about Mizuno products to ensure the level of customer service provided to consumers is commensurate with the premium image of the Mizuno brand and products.
No employee or agent of the company other than a Senior Manager of the company is authorised to make any statement, warranty or representation as to the goods. The buyer, therefore, shall not be entitled to rely or seek to rely upon any statement, warranty or representation made by an employee or agent of the company other than a Senior Manager.
The price of the goods supplied shall be the relevant price appearing in the company’s price list current at the date of delivery and the company reserves the right to amend the price list from time to time without notice. All prices are exclusive of value added tax. The buyer must register in writing with the company any invoice queries within 28 days from the date of the invoice. Thereafter the invoice will be due for payment on the original due date.
6.1. The company shall be entitled to invoice the buyer for the price of the goods on or at any time after delivery of the goods, unless the goods are to be collected by the buyer or the buyer wrongfully fails to take delivery of the goods, in which event the company shall be entitled to invoice the buyer for the price at any time after the company has notified the buyer that the goods are ready for collection or (as the case may be) the company has tendered delivery of the goods.
6.2. The buyer shall pay the price of the goods (without any deduction or set-off) at the end of the month following the date of the company’s invoice, or according to the terms specified overleaf if different, notwithstanding that delivery may not have taken place and the property in the goods has not passed to the buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will only be issued upon request.
6.3. If the buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the company, the company shall be entitled to: a) cancel the Contract or suspend any further deliveries to the buyer; b) appropriate any payment made by the buyer to such of the goods (or the goods supplied under any other contract between the buyer and the company) as the company may think fit (notwithstanding any purported appropriation by the buyer); c) charge an administration fee for returned unpaid any cheque or Direct Debit transaction; and d) charge the buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3% per annum above Lloyds Bank base rate from time to time, until after payment in full is made. A part of a month being treated as a full month for the purpose of calculating interest.
Any discount for prompt payment shown overleaf may only be taken where payment is made by the date specified. Discounts where applicable may only be taken on the goods and in no circumstances may discounts be taken on any additional charges including charges for alterations, repairs or carriage.
All orders are subject to the company’s acceptance and subject to the availability of the goods. Acceptance of orders does not constitute a guarantee by the company of delivery of the goods and the company reserves the right to cancel any order without liability if goods requested by the buyer are not available. Orders of less than £250 will be subject to the company’s standard handling charge applicable at the date of delivery.
Delivery shall be made as soon as possible after the order is placed but no liability is accepted for any loss resulting from late delivery. Delivery dates are stated by way of general information only.
Claims for damage in transit must be notified in writing to the company within seven days of receipt of the goods: in the case of loss in transit, notice must be given in writing to the company within fourteen days of the despatch date shown on the relevant invoice(s).
Risk of loss or damage of any kind to the goods shall pass to the buyer upon delivery of the goods to the place nominated by the buyer. However, where this term has been expressly varied by a separate contract agreed between the company and the buyer, the terms of the contract shall apply.
Product lines listed herein or in the company’s brochures are subject to withdrawal or change by the company without notice and the company reserves the right to make modification without liability on the part of the company to the buyer.
13.1. The company retains ownership of the goods, property in which shall not pass to the buyer and the buyer shall keep any goods delivered to it as bailee for and on behalf of the company until the company has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the company to the buyer for which payment is then due (whether or not the goods are delivered in instalments and some have been paid for by the buyer) and until such time the buyer shall store the goods separately or in some other way ensure that the goods are readily identifiable as the property of the company and at the company’s request either shall deliver up the goods to the company or shall permit the company to repossess the goods and subsequently sell them.
13.2. Upon any resale of any of the goods by the company pursuant to the provision of paragraph (i) above if the proceeds of sale exceed the price of the balance of the price of the goods due to the company from the buyer the company shall pay the excess to the buyer having deducted the cost and expense of the repossession and resale of the goods and any damages which the company has suffered as a result of any repudiation of the Contract by the buyer.
13.3. The provisions of the Clause 13 shall survive the termination of the Contract for whatever reason and in particular but without limitation termination of the Contract by the company by the acceptance of any repudiation of the Contract by the buyer.
13.4. The company shall be entitled to exercise a general lien or right of retention on all goods or any parts thereof in the company’s possession which are the buyer’s property (or which are supplied to the company by the buyer) for any sums whatsoever due to the company and pursuant to such lien or right the company shall be entitled without notice to the buyer to sell all or any part of such goods or part thereof privately or by auction or otherwise and to keep the proceeds of sale in diminution of such sums and of all costs and expenses incurred by the company in effecting the said sales. Any balance remaining thereafter shall be remitted to the buyer by the company. Upon any such sale title in the goods shall pass to the buyer thereof.
14.1. The company warrants (subject as after mentioned) that the goods manufactured by it will be of good material and workmanship and that reasonable care will be employed in assembling or incorporating items not manufactured by it, so that upon the buyer giving written notice to the company that the goods have not been supplied, as aforesaid, if the same be established, and provided the buyer or user has not tampered with the goods, the company will at its own expense, at its option, replace or repair such detective goods or give the buyer credit for the cost of such goods. The foregoing warranty shall not apply unless the buyer has within 28 days of delivery or replacement or repair of goods to which it relates given the company written notice of any claim with respect to such goods.
14.2. Save in respect of liability for death or personal injury arising as a result of the company’s negligence (which liability the company herein accepts), and save in respect of the company’s liability, if any, established pursuant to a specific provision of the Contract (provided that the company shall have no such liability for indirect or consequential loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the buyer or by a third party), the company will not be liable to the buyer for any other loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the buyer or by a third party whether direct or consequential (including but without limitation any economic loss or other loss of turnover, profits, business or goodwill) arising out of any dispute or contractual tortius or other claims or proceedings made or brought against the buyer in respect of the supply of the goods to the buyer or the use of or any other dealing with the goods by the buyer or a third party (including but without limitation claims by a third party alleging infringement of its intellectual property rights) nor shall the company be responsible in any way whatsoever for dealing with such disputes or contractual tortius or other claims or proceedings. The buyer shall pay discharge and indemnify the company and its officers, servants and agents at all times against all and any such loss, damage, costs, legal costs, professional and other expenses.
14.3. The buyer expressly acknowledges that the provisions of this Clause 14 satisfy the requirements of reasonableness specified in the Unfair Contract Terms Act 1977 and that it shall be stopped from claiming the contrary at any future date in the event of any dispute with the company concerning the company’s liability hereunder.
No return of goods will be accepted without written approval of the company and all goods returned are subject to a 10% re-stocking charge.
The failure of the company at any time to enforce any or all of these terms and conditions shall not be construed as a waiver of the same or of the right of the company to enforce the same.
17.1. Any notice or other document to be given under the Contract shall be in writing and shall be deemed to have duly given if left at or sent by:
17.2. All such notice and documents shall be in the English language. Any such notice or other document shall be deemed to have been received by the addressee two working days following the date of despatch of the notice or other document by post or, where the notice or other document is given by telex, facsimile or other electronic media, simultaneously with the transmission. To prove the giving of a notice or other document it shall be sufficient to show that it was despatched.
These terms and conditions and the Contract of which they form part shall be governed by and construed in accordance with English law and the buyer submits to the non-exclusive jurisdiction of the English courts. If any of these conditions or any part thereof is rendered void or unenforceable by any legislation to which it is subject or by any rule or law it shall be void or unenforceable to that extent and not further. The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement promptly through negotiations between the respective senior executives of the parties who have authority to settle the same. If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure as recommended to the parties by the Centre for Dispute Resolution. If the matter has not been resolved by an ADR procedure within 30 days of the initiation of such procedure, (or such other period as may be agreed) or if either party will not or ceases to participate in an ADR procedure, the dispute shall be referred to the English Courts.