Distance Selling General Terms
Terms and Conditions of Sale – Distance Selling
1.1. In these Conditions:1.1.1. “Buyer” means the person whose order of the Goods is accepted by the Seller.
1.1.2. “Contract” means a contract for the sale of the Goods.
1.1.3. “Goods” means the goods (including any instalment of the goods or any parts of them) which the Seller is to supply in accordance with these Conditions.
1.1.4. “Seller” means Sea Kayak Oban, John Mark Mitchell, Laura Bennitt or any subsidiary company.
1.2. The headings in these Conditions are for ease of reference only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1. The Seller shall sell and the Buyer shall purchase the Goods subject to these Conditions. Any terms or conditions in the Buyer’s order or other documentation of whatsoever kind which are inconsistent with these Conditions shall have no effect.
2.1.1 By using ordering systems offered by the Seller, the Buyer agrees and accepts these Terms and Conditions in full.
2.2. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the parties.
2.3. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into any Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of, any such representations which are not so confirmed.
2.4. Any advice or recommendations given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendations which is not so confirmed or the actions of any third party in the storage, application, installation or use of the Goods unless the Buyer has separately contracted for such services with the Seller directly.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6. All descriptions and specifications, drawings and particulars of weights and dimensions used by Sea Kayak Oban are approximate only, and are intended only to present a general idea of the goods to which they refer and shall not form part of the contract. Due to continuing development, Sea Kayak Oban reserves the right to change specifications without notice.
3. ORDERS AND SPECIFICATIONS
3.1. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2. The quantity, quality and description of and any specification for the Goods shall be those set out in the Buyer’s order (if accepted by the Seller).
3.3. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.4 Order acceptance and the completion of the contract between the Buyer and Seller, when buying from the website, will take place on the dispatch of the products ordered by the Buyer, unless the Seller has notified the Buyer that the order has not been accepted or the Buyer has cancelled the order in accordance with the instructions detailed herein. Non-acceptance of an order may take place for one of the following reasons:
• The product ordered by the Buyer is unavailable from stock
• The Seller is unable to obtain authorisation for the Buyer’s payment
• The identification of a pricing or product description error
• The Buyer does not meet the eligibility to order criteria set out in the Terms & Conditions
The Seller reserves the right to reject any offer to purchase by the Buyer at any time. The Seller will take all reasonable care, in so far as it is the Seller’s power to do so, to keep the details of the Buyer’s order and payment secure but, in the absence of negligence, the Seller cannot be held liable for any loss the Buyer may suffer if a third party gains unauthorised access to any data provided by the Buyer when accessing or ordering from the Website.
3.5 The Buyer, when buying from the website, is entitled to cancel the contract if wishing to do so, provided the right is exercised no longer than 14 working days after the day on which the delivery is received.
To exercise the right of cancellation written notice must be given by the Buyer to the Seller via email with full details of the order. Notification by telephone is not sufficient. If the right of cancellation is exercised after the items have been delivered to the Buyer, the Buyer will be responsible for returning the order to the Seller at the Buyer’s own cost. Further, the Buyer must take reasonable care to ensure the items are not damaged in the meantime or whilst in transit.
The Seller reserves the right to refuse a refund on the item if the Seller determines that the product has not been returned in fully resalable condition. All goods must be unused with original labels, tags and manufacturers markings complete.
Products that fall into the following categories will not be refunded unless they are proven to be faulty by the manufacturer, the manufacturers decision being final in all cases;
• Any goods made to a customer’s own specifications, made to measure or personalised items
• CD, DVD, Video, digital media or software, books unless defective
• Sales and Clearance items can only be exchanged within the stock limit and will not be refunded.
If the Buyer wishes to exercise the right to cancel the contract prior to order dispatch, email email@example.com immediately. If the Buyer’s order has already been dispatched the procedure set out in Refund & Returns must be followed. This does not affect the Buyer’s statutory rights.
3.6. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim:
3.6.1. For infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person: or 3.6.2. For negligence or under the Consumer Protection Act 1987 which results from the Seller’s use of the Buyer’s specification.
4. PRICE AND PAYMENT
4.1. The price of the Goods shall be the Seller’s quoted price in pounds sterling (£ GBP).
4.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs to manufacture, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer to give the Seller adequate information or instructions).
4.3. Except as otherwise stated under the terms of any quotations or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller for delivery of the Goods at the Seller’s premises and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4. The price and all other sums due from the Buyer to the Seller shall be increased to include VAT at the current rate.
4.5. The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery or collection of the Goods unless the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
4.6. The Buyer shall pay the Seller’s invoices hereunder within 30 days of the date of invoice. Time shall be of the essence in respect of the payment of all sums due hereunder.
4.7. The Seller reserves the right to charge the Buyer interest at the rate of 3% per annum above the mean base rate for the time being of the London Clearing Banks on all invoices which are not paid in accordance with Condition 4.6 such interest being calculated from a date 30 days after the date of invoice until actual payment compounded quarterly and to be payable as well after as before any judgment obtained in respect thereof.
4.8 For online purchases, all prices are inclusive of VAT where applicable. VAT will be shown at the checkout stage at the current rates and are correct at the time of entering the information onto the system. The total cost of the Buyer’s order is the price of the products ordered plus delivery.
4.8.1 The Buyer must confirm that the credit or debit card that is being used belongs to the Buyer. All credit/debit cardholders are subject to validation checks and authorisation by the card issuer. If the issuer of the payment card used refuses to or does not, for any reason, authorise payment, the Seller will not be liable for any delay or non-delivery.
5. REFUSAL OF TRANSACTION
5.1 The Seller reserves the right to withdraw any products from this Website at any time and/or remove or edit any materials or content on this Website. The Seller may refuse to process a transaction for any reason or refuse service to anyone at any time at the Seller’s sole discretion.
The Seller will not be liable to the Buyer or any third party by reason of withdrawing any product from this Website whether or not that product has been sold, removing or editing any materials or content on the Website, refusing to process a transaction or unwinding or suspending any transaction after processing has begun.
To be eligible to purchase products on this Website and lawfully enter into and form contracts on this Website under Scots law the Buyer must:
• Register by providing the Buyer’s real name, phone number, email address, payment details and other requested information
• Be over 18 years of age
• Stipulate a delivery address. PO box numbers are not acceptable.
• Possess a valid credit or debit card issued by a bank acceptable to the Seller
By making an offer to buy a product, the Buyer specifically authorise the Seller to transmit information (including any updated information) or to obtain information about the Buyer from third parties from time to time, including but not limited to, a debit or credit card number or credit reports, to authenticate the Buyer’s identity, to validate the credit card given, to obtain an initial credit card authorisation and to authorise individual purchase transactions.
6.1. Most orders of in stock items ship the next working day. You will receive a confirmation email for each purchase. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. The manner of delivery shall be chosen by the Seller and may include the use of third party specialist couriers with whom we may need to share the details of contract in order to secure their services.
6.2. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
6.3. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery otherwise than any reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.3.1. Store the Goods until actual delivery and charge the Buyer of the reasonable costs (including insurance) of storage; or
6.3.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.4 The Buyer is entitled to cancel the contract if they wish wish to do so, provided the right is exercised no longer than 14 working days after the day on which the delivery is received. To exercise the right of cancellation written notice must be given to Sea Kayak Oban via email with full details of the order. Notification by telephone is not sufficient. This does not apply in the case of custom specified items such as boats or made to measure garments.
6.5 If the Buyer wishes to cancel the contract once the order has been dispatched, the Buyer should arrange delivery of the return to Sea Kayak Oban at the Buyers cost.
The Buyer will be reimbursed to the card with which the goods were paid for once the goods have been received back into the care of Sea Kayak Oban. The original delivery charges may also be refunded. A refund of the delivery charge will only be given in the instance of incorrect, damaged or faulty goods.
7. RISK AND PROPERTY
7.1. Risk of damage to or loss of the Goods shall pass to the Buyer:7.1.1. In the case of Goods to be delivered at the Seller’s premises, at the time of delivery when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2. In the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property of the Goods shall not pass to the Buyer until the Seller 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 Seller to the Buyer for which payment is then due.
7.3. Until such times as the property of the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or
use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of the sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4. Until such time as the property of the Goods is passed to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon the premises of the Buyer of any third party where the Goods are stored and repossess the Goods.
7.5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1. The Seller only warrants that the Goods will be free from defects in materials and workmanship to the extent that the Goods carry a manufacturer’s warranty. The Buyer shall be entitled to the benefit of such manufacturer’s warranty insofar as the Seller has the power to transfer it.
8.2. The above warranty is given by the Seller subject to the following conditions:8.2.1. The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2. The Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval.
8.3. Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4. Any claim by the Buyer which is based on any defect in the quality or conditions of the Goods shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure.
8.5. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods of their use or resale by the Buyer, except as expressly provided in these Conditions.
9.1. The Seller shall have the right to terminate a Contract forthwith by giving notice in writing if the Buyer:
9.1.1. Fails to make payment of any sum in accordance with Condition 4; or
9.1.2. Shall commit any other material breach of its obligations hereunder and shall not within 14 days of notice of such breach remedy the same; or
9.1.3. Shall enter into liquidation whether compulsorily or voluntarily otherwise than for the purposes of amalgamation or reconstruction without insolvency or shall compound or make any arrangement with its creditors or shall be the subject of an application for an administration order or shall be subject of any proposal under Part 1 of the Insolvency Act 1986 for a composition in satisfaction of its debts.
9.2. Any termination of a Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party.
10. FORCE MAJEURE
Although the Seller shall use all reasonable endeavours to discharge its obligations under a Contract in a prompt and efficient manner, it does not accept responsibility for any failure or delay caused by circumstances beyond its control.
11. EXPORT TERMS
11.1. Where the Goods are supplied for export from the United Kingdom, the provision of this Condition 11 shall (subject to any terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
11.2. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
11.3. Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered at the Seller’s premises and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods act 1979.
11.4. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.
11.5. Payment of all amounts due to the Seller shall be made before dispatch.
12.1. No neglect, delay or indulgence by the Seller in enforcing a Contract shall prejudice the rights of the Seller or be construed as a waiver.
12.2. The Buyer hereby waives all and any future claims and rights of set off against any sums due to the Seller hereunder regardless of any equity, set off or counterclaim on the part of the Buyer against the Seller.
12.3. Any notice hereunder shall be in writing and may be served by sending it by pre-paid first class letter post or delivery (if in the case of a limited company) to the address stated herein, and in any case, to the last known address of the addressee. In proving service of any notice it shall be sufficient to prove in the case of posting that the envelope containing the notice was properly addressed, stamped and posted. Service shall be deemed to be effective at noon of the second business day following the day of posting and any notice delivered to an address by hand shall be deemed to be effective from the date of such delivery.
12.4. The Buyer shall not assign or otherwise transfer all or any part of a Contract without the prior written consent of the Seller.
12.5. The formation, construction and performance of all Contracts shall be governed in all respect by Scots law. The parties hereby agreed to submit to the exclusive jurisdiction of the Scottish Courts
13. REGISTERED ADDRESS
The Registered trading address of Sea Kayak Oban is:
6-8 Argyll Street, Oban, Argyll & Bute, Scotland, PA34 5SG