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Terms & Conditions

 

1 Definitions and Interpretation

  1. 1  “Business Day” means a day (other than a Saturday, Sunday or public

holiday) when banks in London are open for business;
“Conditions” means the terms and conditions set out in this document, as amended from time to time in accordance with clause 9.2;
“Contract” means the contract between Mount Green and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
“Customer” means the person or firm who purchases the Goods from Mount Green;
“Force Majeure Event” means an event or circumstance beyond a party’s reasonable control;
“Goods” means the goods (or any part of them) set out in the Order; “Mount Green” means Mount Green Agencies Limited (registered in England and Wales with company number 00979394) with its registered office at Mount Green House, The Sidings, New Line Industrial Estate, Bacup, Lancashire, OL13 9RW T/A Watersports World (“Watersports World”);
“Order” means the Customer’s order for the Goods, as set out in the Customer’s purchase order form, or in the Customer’s written acceptance of Mount Green’s quotation, as the case may be; and
“Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Mount Green.

  1. 2  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.
  2. 3  or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2 Basis of contract

  1. 1  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
  2. 2  The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
  3. 3  The Order shall only be deemed to be accepted when Mount Green issues a written acceptance of the Order, at which point the Contract shall come into existence.
  4. 4  Any samples, drawing or advertising produced or issued by Mount Green and any descriptions of the Goods or illustrations contained in Watersports World’s catalogues, brochures or on the Watersports World website at http://www.watersportsworld.co.uk (the “Website”) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them and Mount Green shall not be responsible for any printing errors. They shall not form part of the Contract nor have any contractual force.
  5. 5  The Contract constitute the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Mount Green which is not set out in these Conditions.
  6. 6  Any Orders not placed via the Website will be subject to an additional charge of £2 or 2% of the price (in each case excluding VAT) of the Goods (whichever is greater) (the “Additional Charge”). If the Customer places an order via the Website but wants to arrange their own shipping, Mount Green reserves the right to charge the customer the Additional Charge.

3 Delivery of the Goods

  1. 1  Mount Green shall deliver the Goods to the Customer’s place or business or such other location as the parties may agree (“Delivery Location”) at any time after Mount Green notifies the Customer that the Goods are ready. Deliveries cannot be made to PO box locations.
  2. 2  Delivery is completed on the completion of unloading of the Goods at the Delivery Location. All deliveries are DAP terms unless quoted otherwise.
  3. 3  Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Mount Green shall not be liable for any delay in delivery (or non-delivery) of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Mount Green with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  4. 4  If Mount Green fails to deliver the Goods, its liability shall be limited to a refund for the price of the Goods.
  5. 5  If the Customer fails to accept delivery of the Goods or Mount Green is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations then, except where such failure or delay is caused by a Force Majeure Event or Mount Green’s failure to comply with its obligations under the Contract:
    1. 5.1  risk in the Goods shall pass to the Customer;
    2. 5.2  the Goods shall be deemed to have been delivered; and
    3. 5.3  Mount Green may store the Goods until delivery, and the

Customer shall be liable for all related costs and expenses

(including storage and insurance).

  1. 6  If 10 Business Days after the day on which Mount Green notified the

Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Mount Green may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

  1. 7  If the Goods are damaged in transit, the Customer must notify Mount Green within 24 hours of receipt of the Goods. The Customer must also (where reasonably possible) sign for the Goods on delivery as damaged, if the damage is reasonably evident at the time of delivery of the Goods.
  2. 8  Mount Green may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4 Quality

4.1 Mount Green warrants that on delivery, and for a period of 12 months from the date of delivery (the “Warranty Period”), the Goods shall:

4.1.1 4.1.2

4.1.3

4.2 Subject to 4.2.1

4.2.2 4.2.3

conform in all material respects with their description;
be free from material defects in UK design, material and workmanship; and
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
clause 4.3, if:
the Customer gives notice in writing to Mount Green (including providing 3 different images of the Goods and proof of purchase) via the Website during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
Mount Green is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by Mount Green) returns such Goods to Mount Green’s place of business at the Customer’s cost, with a copy of the sale invoice enclosed,

Mount Green shall, at its option, repair or replace the defective Goods or

provide a credit note (at its discretion).

  1. 3  Mount Green shall not be liable for the Goods’ failure to comply with the

warranty set out in clause 4.1 in any of the following events:

  1. 3.1  the Customer makes any further use of such Goods after giving

notice in accordance with clause 4.2;

  1. 3.2  the defect arises because the Customer misused the Goods

and/or failed to follow Mount Green’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;

  1. 3.3  the defect arises as a result of Mount Green following any drawing, design or Specification supplied by the Customer;
  2. 3.4  the Customer alters or repairs such Goods without the written consent of Mount Green;
  3. 3.5  the Customer does not comply with any other warranty enclosed with the Goods (for example, use of an obstacle or rail on any wakeboards);
  4. 3.6  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
  5. 3.7  the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  1. 4  Except as provided in this clause 4, Mount Green shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
  2. 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.
  3. 6  These Conditions shall apply to any repaired or replacement Goods supplied by Mount Green.
  4. 7  Goods returned (other than a warranty return) will be subject to a 15% handing charge and must be in re-saleable condition. Delivery charges for all returns will be the responsibility of the Customer.

5 Title and risk

  1. 1  The risk in the Goods shall pass to the Customer on completion of delivery of the Goods.
  2. 2  Title to the Goods shall not pass to the Customer until the earlier of:
    1. 2.1  Mount Green receives payment in full (in cash or cleared funds) for the value of the Goods on that invoice as well as any other

invoices outstanding and all monies due.

  1. 2.2  the Customer resells the Goods, in which case title to the Goods

shall pass to the Customer at the time specified in clause 5.4.

  1. 3  Until title to the Goods has passed to the Customer, the Customer shall:
    1. 3.1  hold the goods on a fiduciary basis as Mount Green’s bailee;
    2. 3.2  store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Mount Green’s property;
    3. 3.3  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    4. 3.4  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
    5. 3.5  notify Mount Green immediately if it becomes subject to any of the events listed in clause 7.1; and
    6. 3.6  give Mount Green such information relating to the Goods as Mount Green may require from time to time.
  2. 4  Subject to clause 5.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Mount Green receives payment for the Goods. However, if the Customer resells the Goods before that time:
    1. 4.1  it does so as principal and not as Mount Green’s agent; and
    2. 4.2  title to the Goods shall pass from Mount Green to the Customer immediately before the time at which resale by the Customer

occurs.

  1. 5  If before title to the Goods passes to the Customer the Customer becomes

subject to any of the events listed in clause 7.1, then, without limiting any other right or remedy Mount Green may have:

  1. 5.1  the Customer’s right to resell the Goods or use them in the

ordinary course of its business ceases immediately; and

  1. 5.2  Mount Green may at any time:
    1. (i)  require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
    2. (ii)  if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
  2. 6  Mount Green may at any time recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses Mount Green, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 5.2 and to recover any Goods in which property has not passed to the Customer. A restocking/handling fee of 30% of the price of the Goods will be payable by the Customer in such circumstances.

6 Price and payment

  1. 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 Mount Green’s published price list in force as at the date of delivery. Mount Green retains the right to change the prices of the Goods and any specification without prior notice to the Customer. Every effort has been made to ensure prices and technical descriptions are correct on the Website, however in certain circumstances prices and technical descriptions may not be correct. It is the Customer’s responsibility to verify the price of the Goods at the time of the purchase, via email or telephone.
  2. 2  Mount Green may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
    1. 2.1  any factor beyond Mount Green’s control (including foreign

exchange fluctuations, increases in taxes and duties, and

increases in labour, materials and other manufacturing costs);

  1. 2.2  any request by the Customer to change the delivery date(s),

quantities or types of Goods ordered, or the Specification; or

  1. 2.3  any delay caused by any instructions of the Customer or failure of the Customer to give Mount Green adequate or accurate

information or instructions.

  1. 3  The price of the Goods:
    1. 3.1  excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Mount Green at the prevailing rate, subject to the receipt of a valid VAT invoice; and
    2. 3.2  excludes the costs and charges of packaging, carriage, loading, unloading, insurance and transport of the Goods, which shall be invoiced to the Customer.
  2. 4  Mount Green may invoice the Customer for the Goods on or at any time after the completion of delivery.
  3. 5  Any cancelation fees will be invoiced on the day the original delivery was due.
  4. 6  All deposit amounts are held specific to that particular order for which they were originally intended, they are not to be treated as a general payment on account and as such are non-transferable from one order to another.
  5. 7  The Customer shall pay the invoice in full and in cleared funds within 30 calendar days of the date of the invoice (unless otherwise directed by Mount Green). Payment shall be made to the bank account nominated in writing by Mount Green. Time for payment is of the essence. Goods can be paid for on account, via debit or credit card or via cheque. Payment by credit card will be subject to a 3% surcharge. Mount Green reserves the right to retrospectively pass on to the Customer any bank charges it has incurred on behalf of the Customer (e.g. overseas credit card/bank charges charges). New customers that have not placed an Order with Mount Green previously or current customers who have not placed an order with Mount Green in the 12 months preceding the date of the Order must pay for the Goods upfront (following receipt of a sales order). Cheques which fail to clear will subject to an additional charge of £10 for each presentation. If the Customer requires a copy of an invoice, this will be charged at £5 per physical copy or emailed to the Customer for no extra charge.
  6. 8  The Customer 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). Mount Green may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Mount Green to the Customer.

7 Termination

  1. 1  Without limiting its other rights or remedies, Mount Green may terminate the Contract with immediate effect by giving written notice to the Customer if:
    1. 1.1  the Customer commits a material breach of any term of the

Contract and (if such a breach is remediable) fails to remedy

that breach within 14 days of being notified in writing to do so;

  1. 1.2  the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous

procedure in the relevant jurisdiction;

  1. 1.3  the Customer suspends, threatens to suspend, ceases or

threatens to cease to carry on all or a substantial part of its

business;

  1. 1.4  the Customer brings or is likely to bring the name or reputation

of Mount Green and/or Watersports World and/or its brands into

disrepute; or

  1. 1.5  the Customer’s financial position deteriorates to such an extent

that in Mount Green’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

  1. 2  Without limiting its other rights or remedies, Mount Green may suspend provision of the Goods under the Contract or any other contract between the Customer and Mount Green if the Customer becomes subject to any of the events listed in clauses 7.1.1 to 7.1.5, or Mount Green reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
  2. 3  Without limiting its other rights or remedies, Mount Green may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment. On termination of the Contract for any reason the Customer shall immediately pay to Mount Green all outstanding unpaid invoices and interest.
  3. 4  Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.

7.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

8 Limitation of liability

8.1 Nothing in these Conditions shall limit or exclude Mount Green’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), for fraud or fraudulent misrepresentation or for any other matter in respect of which it would be unlawful for Mount Green to exclude or restrict liability.

8.2 Subject to 8.2.1

8.2.2

clause 8.1:
Mount Green shall under no circumstances whatsoever be liable to the Customer, 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
Mount Green’s total liability to the Customer 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 paid or to be paid by the Customer under the Contract.

8.3 This clause 8 shall survive termination of the Contact.

9 General

  1. 1  The Customer shall not without the prior written consent of Mount Green, assign, transfer, sub-contract, charge, create a trust in, or deal in any other manner with all or any of its rights or obligations under the Contract.
  2. 2  No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  3. 3  Notice given under the Contract shall be in writing, addressed to the recipient party at its registered office or such other address as that party may have specified to the other party in writing sent to the address and shall be delivered either personally, by courier, or by recorded delivery. A notice is deemed to have been received on signature of a delivery receipt by an individual at the correct address for notices.
  4. 4  Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 30 days, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.
  5. 5  A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
  6. 6  If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
  7. 7  Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
  8. 8  The Contract does not create any rights or benefits enforceable by any person not a party to it (within the meaning of The Contracts (Rights of Third Parties) Act 1999).
  9. 9  The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that 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 the Contract or its subject matter or formation.
  10. 10  A copy of the Terms & Conditions is to be included with every orderform, and made available on the customer server locations. Every effort is made by Mount Green to ensure the customer has easy access to view the Terms and Conditions by which they are bound.
  11. 11  Any order placed is accepted on the basis the customer has read and understood the Terms and Conditions in place. The placing of any order will be treated the same as receiving a signed copy of the Terms & Conditions on the basis the customer has had access to them.
  12. 12  Cancelation of any order once confirmed by the customer is not possible, there is no window to adjust or reduce any order once confirmed. Should the customer refuse delivery, a fee of 30% of the cancelled product value will be levied onto the account.
  13. 13  The cancelation terms are included with every order document, and the placing of any order confirms acceptance of these terms.
  14. 14  For items used in a Commercial environment, for generation of profit and with usage heavier than what could be considered normal from that of a regular consumer, 30 days warranty is the cover provided. This gives times for any obvious manufacturing issues to become apparent. 30 Days Commercial Use warranty protecting against manufacturing defect is industry standard, is noted at time of sale, and has no opportunity to be extended. Any product sold for commercial use shall have wear and tear considered in any claim starting immediately after purchase.