TERMS AND CONDITIONS OF SUPPLY OF SERVICES FOR BUSINESS CUSTOMERS
The Customer’s attention is particularly drawn to the provisions of clauses 8 and 9
1.1 Definitions. In these Conditions, the following definitions apply:
Supplier: WHOLE IN 1 GOLF LIMITED registered in England and Wales with company number 07574948
Customer: the entity which purchases Services from the Supplier for business purposes.
Conditions: these terms and conditions.
Club: The venue specified in the Offer.
Offer: a written document headed “Offer” supplied by the Supplier to the Customer setting out the Services to be performed for the Customer.
Contract: the contract between the Supplier and the Customer for the supply of the Services set out in the Offer in accordance with these Conditions.
Acknowledgment: a written document headed “Acknowledgment” sent by the Supplier to the Customer which confirms the supply of Services in accordance with these Conditions.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in getup, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Prohibited Content: means any content which infringes any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights).
Flyover: means the computer generated 3D simulation of the Club’s golf course.
Platforms: means any platforms to be used for the provision of the Services in any media whether now known, yet to be developed or as part of other products within the W1G Group of companies.
Materials: shall mean the content provided to the Supplier by the Customer from time to time for use in performing the Services.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory 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;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Offer constitutes an offer by the Supplier to supply services to the Customer (Services) in accordance with these Conditions.
2.2 The Offer is accepted when the Customer communicates an acceptance of the Offer whether orally or in writing (which for the sake of clarity includes by email and or fax), at which point the Contract shall come into existence (the Start Date).
2.3 If the Customer purports to accept the Offer on terms other than these Conditions, the purported acceptance will be deemed to be a counter-offer and no contract shall come into existence until the Customer receives the Acknowledgment or accepts performance by the Supplier under the Acknowledgement at which point the Contract shall come into existence based upon these Conditions (the Acknowledgment Start Date).
2.4 The Customer acknowledges and agrees that the Contract takes effect as at either the Start Date or the Acknowledgment Start Date, whichever is the earlier and, once so commenced, is only terminable in accordance with the Contract’s terms as set out herein.
2.5 The Contract constitutes 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 the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions, illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures or on the Supplier’s websites are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.7 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.
2.8 Any Offer given by the Supplier is only valid for a period of 5 Business Days from its date of issue and can be withdraw or amended by the Supplier at any time prior to its acceptance.
2.9 Any typographical, clerical or other error or omission in any sales literature, Offer, quotation, pricelist, Acknowledgment, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
3. SUPPLY OF SERVICES
3.1 The Supplier shall provide the Services to the Customer in accordance with the Offer in all material respects.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in the Offer, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 Where the supply of Services is contingent upon the performance of the Club, without prejudice to clause 11.6 below, the Supplier will use it’s reasonable endeavours to procure compliance by the Club with the terms of the Offer to the extent of it’s ability to do so under the Supplier’s contractual relationship with the Club. However, if the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission of the Club or failure by the Club to perform any relevant obligation then the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 3.
3.4 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.5 In the event that the Services cannot be supplied at the Club for any reason howsoever arising, the Supplier may, in it’s absolute discretion, substitute the Club for another venue within a 30-mile radius and the Supplier shall notify the Customer in any such event.
3.6 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER‘S OBLIGATIONS
4.1 The Customer shall:
(a) ensure that the terms of the Offer are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) at all material times provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services within any time period specified by the Supplier and ensure that such information is accurate in all material respects (in default of which the Supplier may, in it’s absolute discretion, use generic information or material in order to provide the Services);
(d) obtain and maintain all necessary licences, permissions and consents, including any such licenses, permissions and consents regarding Intellectual Property Rights which may be required for the Services before the Start Date or Acknowledgement Start Date;
(e) ensure that any Materials do not contain, or refer to, any Prohibited Content at any time throughout the term of this Contract and indemnify the Supplier against any and all damages, losses and expenses arising as a result of any action or claim that any Materials constitute or include any Prohibited Content;
(f) satisfy itself that the Services to be provided by the Supplier, the Materials or any other content, information or descriptions provided as part of the same, do not infringe or contravene any regulatory or legal obligations placed upon it by the law (from time to time) of England and Wales or any other country in which the Services are intended to be, or are used or provided or any rules, regulations or guidelines provided by any applicable regulatory body in it’s business sector (from time to time);
(g) hereby warrant that the individual providing the communicated acceptance of the Offer as set out in clause 2.2 above is duly authorised so to do and understands that by doing so they are entering into a contractual relationship with the Supplier on the terms as set out in this Contract; and
(h) hereby warrant that it will pay any and all invoices issued by the Supplier strictly in accordance with Clause 5 below.
(b) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(c) In the event that the Supplier exercises it’s right under clause
4.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to exercise it’s right to use generic materials or information to provide the Services in accordance with clause
(b) above to suspend performance of the Services and the Customer Default is subsequently remedied, the Supplier shall be under no duty to deliver any element of the Services missed during the period of suspension and the Supplier’s obligation will be to provide the Services over the remainder of the Term on a pro-rata basis;
(d) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(e) the Customer shall reimburse the Supplier on written demand for any costs (including any legal costs incurred by the Supplier) or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The price for the Services shall be the price set out in the Offer, which the parties agree represents a genuine pre estimate of the Supplier’s loss in the event of the Customer breaching the terms of the Contract.
5.2 The Supplier shall invoice the Customer for the Services either in advance, at the date the Contract is entered into or at any other time at its sole discretion.
5.3 The Customer shall pay each invoice submitted by the Supplier:
(a) Immediately or in advance if required by the Supplier; or
(b) Within 7 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment then:
(a) Any discount set out within the Offer shall be immediately disciplined and the difference between the discounted price and the full price set out in the Offer shall become immediately due and payable (for which the Supplier will issue a separate invoice payable immediately in accordance with this clause 5); and
(b) the Customer shall pay interest on the overdue amount (including any additional invoices raised under clause 5.5(a) above) at the rate of 10% per annum above Barclay’s Bank base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services are owned by or are licensed by the Supplier.
6.2 All Intellectual Property Rights in the Flyover and the Platforms (including in the content of the Flyover and Platforms and/or the Flyover and Platform’s software or coding) arising in connection with this agreement shall be the property of the Supplier, and insofar as is required for the provisions of the Services the Supplier hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of providing the Services for the term of the Contract, subject to the Customer paying any and all sums due under the Contract in accordance with clause 5 above.
6.3 The Customer acknowledges that, in respect of any Intellectual Property Rights or any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier’s consent and or obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
6.4 The Customer shall not use or display any tradename, logo, packaging, advertising or promotional literature belonging to or licensed by the Supplier without the prior written consent of the Supplier.
6.5 The Customer will indemnify the Supplier for any costs, expenses and damages, including without limitation legal costs on an indemnity basis, in respect of claims threatened by or brought by any third parties against the Supplier in respect of the Services or as a result of any action or claim that the Materials or the Services infringe the Intellectual Property Rights of a third party.
6.6 The Customer shall grant the Supplier a licence to use the Customer’s logo and trade names and shall allow the Supplier to reproduce the same on the Supplier’s own website.
6.7 The Customer shall grant the Supplier a licence to refer to the Materials, the Services and any other work product generated in the performance of the Services (including but not limited to any design, artwork, and copy whether featured within the Flyover or on the Platforms or not) and this Agreement and to use the Customer’s logo and trade names for Public Relations, Publicity and Marketing purposes.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which cannot be excluded or limited under applicable law.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatever 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
(b) the Supplier’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 lower of £5,000 or 100% of the total price for the Services actually paid by the Customer to the Supplier unless otherwise agreed in writing signed by the Supplier.
8.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Customer will indemnify the Supplier against any claim made against the Supplier in respect of loss or damage claimed by any third party against the Supplier in relation to Services that have been the subject of the contract between the Customer and the Supplier, and the indemnity will include a full indemnity for any legal costs reasonably incurred by the Supplier in responding to or defending any such claim, whether or not proceedings are issued.
8.5 The Supplier does not provide any type of legal advice and does not contract or warrant that any content contained or distributed within, or as part of, the Services is supplied in a manner which is consistent with the law (from time to time) of England and Wales or any other country in which the Services are intended to be, or are used or provided.
8.6 The Supplier shall not be liable to the Customer for any direct or indirect or consequential loss or damage, of any nature including fines or other legal sanctions caused by or flowing from any failure to comply with any relevant legislation or regulatory obligations placed upon the Customer from time to time howsoever arising.
8.7 This clause 8 shall survive termination of the Contract.
9. TERMINATION: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1 The Contract shall commence on either the Start Date or the Acknowledged Start Date and shall (subject to earlier termination pursuant to this clause 9) continue for a period of 2 years (the Term).
9.2 After the expiration of the Term, unless the Contract has been terminated by one of the parties giving the other at least 6 months-notice (before the Contract end-date) or in accordance with this clause 9 below, the Contract will recommence for a further 2 years under the same terms contained in the Offer and the Conditions unless and until terminated by one of the parties giving the other at least 6 months-notice or in accordance with this clause 9 below.
9.3 Without limiting its other rights or remedies, the supplier may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party (being an individual) is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(g) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3(a) to clause 9.3(h) (inclusive);
(j) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(k) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
(m) In spite of the Supplier’s contract being terminated with the club either by the Supplier or by the Club or the Supplier’s contract with the Club comes to an end the Supplier will use it’s best endeavours to maintain the service beyond that point.
9.4 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.5 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 20 Business days after receipt of notice in writing to do so;
9.6 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer provides to the Supplier, or requests that the Supplier creates, any item which contains or refers to any Prohibited Content.
9.7 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer makes or causes to be made any comment (be it verbal or written) that a director of the Supplier considers in their absolute discretion to be averse to the interests of the Supplier or to be derogatory in nature or tone.
9.8 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.3(a) to clause 9.3(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
9.9 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of any sums due under the Contract which would have been invoiced by the Supplier in accordance with clause 5 above but for the termination of the Contract but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall indemnify the Supplier for any and all losses, costs, damages and expenses suffered or incurred by the Supplier as a result of the termination of the Contract including indemnifying the Supplier for all of it’s legal costs and disbursements incurred in enforcing the terms of this agreement and/or the recovery of any unpaid debt due by the Customer under Clause 9.9(a) above;
(c) The Supplier shall, in its absolute discretion, be entitled to immediately resell the Services to a third party without restriction or liability vis a vis the Customer and the Customer hereby warrants not to interfere or attempt to interfere with any such resale;
(d) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
10. FORCE MAJEURE
10.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
10.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
10.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 8 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or by email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
11.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation
(including non-contractual disputes or claims).