1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions (including the Cover Sheet), unless the context otherwise requires, the following terms shall have the following meanings:
“Company” means PSP Publishing Limited, a private limited company registered in Scotland (Company No. SC158316) and having its registered office at 50 High Craighall Road, Glasgow, G4 9UD, trading as bunkered Golf Club;
“Commencement Date” means the date of signature of these Terms and Conditions (including the Cover Sheet) by the Company or as otherwise agreed between the Parties;
“Cover Sheet” means such sheet or letter detailing the Promotions the Supplier, the Voucher Price and the Voucher Services and to which these Terms and Conditions are attached;
“Customer” means any person who has registered with the Website and indicated their wish to receive email updates of any Promotions available for purchase from time to time;
“Intellectual Property Rights” means all patents, trade marks, registered designs (and any applications for any of the foregoing), copyright (including rights in software), semi-conductor topography rights, database right, unregistered design right, rights in and to trade names, business names, domain names, product names and logos, databases, inventions, discoveries, know-how and any other intellectual or industrial property rights in each and every part of the world together with all applications, renewals, revisions and extensions;
“Parties” means bunkered Golf Club and the Supplier;
“Promotions” means any promotions agreed in writing from time to time by the Supplier and bunkered Golf Club;
“Purchaser” means a purchaser of a Voucher;
“Supplier” means the party defined in the Cover Sheet;
“Termination Date” means the date of termination of these Terms and Conditions in accordance with clause 10 of these Terms and Conditions;
“Terms and Conditions” means these terms and conditions for the provision of the Voucher Services (inclusive of the Cover Sheet);
“Total Voucher Price” means the total sum paid by a Purchaser to bunkered Golf Club in relation to all Vouchers purchased in respect of a specific Promotion;
“VAT” means Value Added Tax at the applicable rate from time to time;
“Voucher” means the voucher provided by bunkered Golf Club to Purchasers upon purchase of a Promotion;
“Voucher Price” means the price of a Voucher;
“Voucher Services” means the services or goods to be provided by the Supplier to the Purchaser in accordance with the Voucher;
“Website” means www.bunkeredgolfersclub.com or such other website as may be used by bunkered Golf Club to advertise the Promotions;
“bunkered Golf Club” means the business and trading name of bunkered Golf Club which is owned and operated by the Company;
“bunkered Golf Club Document” includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form; and
“bunkered Golf Club Materials” means all bunkered Golf Club Documents, information, products and materials provided or developed by bunkered Golf Club or its agents, subcontractors, consultants or employees in relation to the Voucher Services in any form whatsoever including computer programs, data, reports and specifications (including drafts).
1.2 Clause headings are for ease of reference only and shall not affect the construction or interpretation of any clause. Words importing the singular shall include the plural and vice versa and words denoting any gender shall include all genders. References to legislation are to that legislation as amended or re-enacted from time to time.
2. APPLICATION OF TERMS AND CONDITIONS
2.1 The agreement between bunkered Golf Club and the Supplier (the “Agreement) shall comprise the Order Form and these Conditions. These Terms and Conditions shall:
- 2.1.1 constitute a binding contract between bunkered Golf Club and the Supplier in relation to the Voucher Services; and
- 2.1.2 prevail over any inconsistent terms or conditions contained, or referred to in any other agreement between the Parties relating to the Voucher Services, or in any other terms that the Supplier seeks to impose or incorporate, or as may otherwise be implied by law, trade custom, practice or course of dealing.
3.1 The Supplier and bunkered Golf Club will, with effect from the Commencement Date, agree to offer certain Promotions for purchase by the public generally and bunkered Golf Club will publicise any such Promotions by way of advertisement on the Website. bunkered Golf Club may email Customers who have provided bunkered Golf Club with a valid email address, to notify them of any Promotions available for purchase on the Website from time to time.
3.2 The Supplier hereby grants bunkered Golf Club a non-exclusive, royalty free licence to use the Supplier Content, including the Supplier Trade Marks, on the Website and in the promotion of the Website subject to any instructions or brand guidelines as may be notified to bunkered Golf Club by the Supplier.
3.3 bunkered Golf Club and the Supplier will agree the frequency of any such Promotion on a case by case basis.
3.4 The details of each Promotion will be agreed between the Parties on a case by case basis, including the Voucher Services, the Voucher Price and the number of Vouchers which may be sold by bunkered Golf Club in relation to each Promotion and in the first instance shall be provided for in the Cover Sheet.
3.5 Upon purchase of any Promotion, bunkered Golf Club will issue Purchasers with a Voucher relating to such Promotion. Responsibility for design and delivery of any such Voucher shall rest with bunkered Golf Club.
3.6 The Supplier agrees that all restrictions on the redemption of the Vouchers at Supplier are set out in the Order Form and that no additional terms and conditions and/or restrictions on the redemption of the Vouchers will be imposed by Supplier.
3.7 The Supplier shall be solely responsible for providing the Voucher Services to the Purchaser and shall deal directly with the Purchaser in relation thereto and in accordance with its obligations as detailed in clause 4 below but subject to any conditions or restrictions specified in the Voucher.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall:
- 4.1.1 co-operate with bunkered Golf Club in all matters relating to the Voucher Services;
- 4.1.2 provide bunkered Golf Club with such information as bunkered Golf Club may reasonably require from time to time and ensure that such information is true, complete and accurate in all respects;
- 4.1.3 upon production by the Purchaser of a valid Voucher (which has not been cancelled or previously redeemed) provide the Purchaser with the Voucher Services in accordance with the specification of the Voucher Services in the Voucher in all material respects. bunkered Golf Club shall have no obligation or responsibility to the Customer save other than to send the relevant Voucher(s) to the Purchaser(s);
- 4.1.4 provide the Purchaser with Voucher Services of a greater value than the Voucher Price paid by the Purchaser in respect of the relevant Voucher;
- 4.1.5 continue to provide the Voucher Services until the expiry date (if any) stipulated on the Voucher, notwithstanding (if applicable) the earlier termination of these Terms and Conditions;
- 4.1.6 provide the Purchaser with all care and attention reasonably expected of such a supplier of such services and shall provide the Purchaser with Voucher Services of, at least, equivalent quality to services provided by the Supplier to non-Voucher customers and in accordance with relevant industry standards;
- 4.1.7 where the relevant Voucher Services are goods, provide goods which are of a satisfactory quality, fit for purpose and which correspond with any description or technical specification which may be contained in the relevant Voucher;
- 4.1.8 not substitute any goods and/or services forming part of the Voucher Services for other goods and/or services;
- 4.1.9 in the event of any complaint or claim by a Purchaser in relation to the Voucher Services provided, forward full details of any such complaint or claim to bunkered Golf Club as soon as reasonably practicable upon receipt of the complaint or claim and liaise with bunkered Golf Club to resolve the complaint or claim to the satisfaction of the Purchaser and bunkered Golf Club without delay; and
- 4.1.10 Otherwise refrain from any act which may bring bunkered Golf Club into disrepute.
4.2 The Supplier shall pay to bunkered Golf Club, on demand, all reasonable costs, charges or losses sustained or incurred by bunkered Golf Club (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Supplier's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Terms and Conditions, subject to bunkered Golf Club confirming such costs, charges and losses to the Supplier in writing.
5. PAYMENT OF SUPPLIER REVENUE SHARE
5.1 Upon purchase of a Voucher, the Purchaser shall pay the Total Voucher Price to bunkered Golf Club. bunkered Golf Club shall be entitled to retain (i) the agreed % of the total Voucher Price as a commission fee (the “Commission Fee”) the balance remaining thereafter being called the “Suppliers Revenue Share”.
5.2 With regards to weekly deals bunkered Golf Club will make payment of the first instalment of the supplier revenue share by electronic transfer 30 days after the closing date of the deal. The remaining balance less any refunds will be made by electronic transfer 30 days after the expiry date of the deal has been reached. Unredeemed vouchers will be split evenly between bunkered Golf Club and the supplier payment will be made by electronic transfer 30 days after the expiry date of the deal has been reached.
5.3 With regards to always-on deals bunkered Golf Club will make payment of the supplier revenue share by electronic transfer on the last working day of the month after the deal goes live. Each month thereafter on the last working day of the month bunkered Golf Club will make payment of the supplier revenue share from the previous month less any refunds by electronic transfer.
5.4 The supplier will send bunkered Golf Club an invoice for the amount transferred within 7 days of each payment.
5.5 As soon as reasonably practicable following the later of the expiry date of any Promotion and the expiry of any cancellation period to which a Purchaser may be entitled, bunkered Golf Club shall confirm to the Supplier, in writing, the total number of Vouchers purchased (excluding any cancellations) in relation to such Promotion (the “Confirmation Date”) and shall provide the Supplier with a list containing details of all Vouchers purchased in relation to the Promotion, including a note of any applicable codes or reference numbers displayed on the Vouchers (the “Voucher List”).
5.6 bunkered Golf Club shall issue statements to Supplier setting out the Supplier Revenue Share (a “Revenue Statement”).
5.7 Supplier Revenue Share is inclusive of VAT (if applicable).
5.8 Supplier shall be solely responsible for complying with Supplier’s VAT obligations in respect of Supplier’s receipt of Supplier Revenue Share and the provision of the Voucher Services to Customers. bunkered Golf Club cannot assist Supplier with legal or tax advice.
5.9 bunkered Golf Club reserves the right to increase its Commission Fee at any time during the life of these Terms and Conditions. bunkered Golf Club will give the Supplier written notice of any such increase at least  months before the date of the proposed increase. If the increase is not acceptable to the Supplier, it shall notify bunkered Golf Club in writing within  weeks of the date of bunkered Golf Club’s notice and thereafter either Party shall have the right to terminate the Terms and Conditions by giving  weeks’ written notice to the other.
5.10 bunkered Golf Club will charge a monthly hosting fee of £10 per deal. This will be invoiced at the end of each month where a deal has appeared on the bunkered Golf Club site.
5.11 All sums payable by either Party to the other under the Terms and Conditions shall become due immediately on termination, despite any other provision. This clause 5.11 is without prejudice to any right to claim for interest under the law, or any such right under the Terms and Conditions.
5.12 If a Customer reasonably requests a refund and/or in bunkered Golf Club’s reasonable opinion, the Customer is entitled to a refund, in both cases due to the Supplier’s failure to comply with its obligations under clause 4 or clause 8, then the Supplier shall promptly provide a cash payment equal to the Deal Price to the Customer.
5.13 bunkered Golf Club may, without limiting or prejudice to any other rights or remedies it may have, set off any amounts owed to it or PSP Publishing Limited by the Supplier against any amounts payable by bunkered Golf Club or PSP Publishing Limited to the Supplier.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 As between the Supplier and bunkered Golf Club, bunkered Golf Club shall own all Intellectual Property Rights and all other rights in bunkered Golf Club Documents, the bunkered Golf Club Materials, the Vouchers and the Website.
6.2 Where the Supplier has provided information or materials to bunkered Golf Club for use in any Promotion, the bunkered Golf Club Documents, the bunkered Golf Club Materials, Vouchers or the Website, the Supplier shall indemnify and hold harmless bunkered Golf Club against all and any claims brought against bunkered Golf Club alleging any infringement of third party Intellectual Property Rights or any other similar right of a third party.
7. CONFIDENTIALITY AND BUNKERED GOLF CLUB’S PROPERTY
7.1 The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, prices, financial or business information, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by bunkered Golf Club, its employees, agents or sub-contractors and any other confidential information concerning bunkered Golf Club’s business or its products which the Supplier may obtain (the “Confidential Material”). The Supplier shall restrict disclosure of such Confidential Material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Supplier's obligations to bunkered Golf Club, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Supplier.
7.2 The Supplier shall not use any such Confidential Material for any purpose other than to perform its obligations under the Terms and Conditions.
7.3 Upon termination of the Terms and Conditions the Supplier shall return all Confidential Material to bunkered Golf Club.
7.4 This clause 7 shall survive termination of the Terms and Conditions, however arising.
8.1 The Supplier warrants that the Voucher Services will be provided with all reasonable skill and care, in accordance with good industry practice, using appropriately qualified and experienced personnel (as applicable).
8.2 The Supplier warrants that, where the relevant Voucher Services to be supplied are goods, the goods supplied shall conform to all standards required by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 and any other relevant legislation in force from time to time.
8.3 The Supplier warrants that they have obtained and shall throughout the Term obtain and maintain all necessary licences, consents and permissions to enable it to operate and sell Voucher Services.
8.4 The Supplier warrants that the Usual Selling Price represents the Supplier’s genuine selling price of the Voucher Services and has not been artificially manipulated by the Supplier.
8.5 The Supplier shall on demand reimburse bunkered Golf Club for any Print Advertising Charges for Advertising where the supplier:
- 8.5.1 withdraws Voucher Services from a Deal before the Deal Launch Date;
- 8.5.2 does not have sufficient stock of the Voucher Services in accordance with clause 8.1 and/or
- 8.5.3 does not provide Voucher Services to any or all Customers whom bunkered Golf Club confirms possess a Voucher that is valid.
9. INSURANCES & INDEMNITIES
9.1 Neither party shall exclude liability for death or personal injury caused by its negligence or its agents acting within the scope of their duties.
9.2 The aggregate maximum liability of bunkered Golf Club under the Terms and Conditions in relation to any Promotion shall in no circumstances exceed a sum equal to the aggregate Commission Fee received by bunkered Golf Club for the relevant Voucher Services relating to such Voucher Services in the year in which the liability arises.
9.3 bunkered Golf Club shall, in no circumstances be liable to the Supplier (including by way of indemnity) in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known, in contemplation of the Parties or otherwise):
- 9.3.1 any, indirect, incidental, special or consequential loss or damage (whether or not such loss or damage is of the type specified in clauses 9.3.2 to 9.3.10 below);
- 9.3.2 loss of actual or anticipated profits;
- 9.3.3 loss of goodwill;
- 9.3.4 loss of business;
- 9.3.5 loss of revenue or of the use of money;
- 9.3.6 loss of contracts;
- 9.3.7 loss of use or downtime;
- 9.3.8 loss of anticipated savings;
- 9.3.9 loss of or corruption to data (including software) or other information; and
- 9.3.10 damage relating to the procurement by the Supplier of any substitute products or services.
10. TERM AND TERMINATION
10.1 The Terms and Conditions shall commence on the Commencement Date and shall, subject as otherwise provided, continue until terminated in accordance with this clause 10.
10.2 The Terms and Conditions may be terminated by either of the Parties by written notice with immediate effect if:
- 10.2.1 either party shall fail to observe or perform any of its material obligations contained in the Terms and Conditions;
- 10.2.2 either party commits a non material breach that it fails to remedy within thirty (30) days of being requested to do so by the other party, or
- 10.2.3 either party ceases to carry on its activities, becomes unable to pay its debts when they fall due, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily or shall suffer any analogous event under any jurisdiction which it is subject to.
11. CONSEQUENCES OF TERMINATION
11.1 On expiry or termination of the Agreement:
- 11.1.1 the Supplier undertakes to continue to provide the Voucher Services to Purchasers until the expiry date or last redemption date (if any) stipulated on the relevant Voucher;
- 11.1.2 the Supplier shall return all of the bunkered Golf Club Documents, the bunkered Golf Club Materials and Confidential Material; and
- 11.1.3 all amounts due and that remain outstanding by bunkered Golf Club to the Supplier under the Terms and Conditions shall be paid within 30 days by bunkered Golf Club, save in respect of any sums due under clause 5.4 which shall become payable on the date or dates set out in that clause.
11.2 Termination of the Terms and Conditions, howsoever arising, shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of the Terms and Conditions, which is expressly or by implication intended to come into force or continue in force on or after that termination.
12. FORCE MAJEURE
If either Party is prevented from or hindered or delayed in performing any obligations under the Terms and Conditions by reason of any circumstances beyond its reasonable control, it shall be excused performance to the extent affected by the circumstances concerned so long as it shall both have given notice to the other Party of those circumstances promptly after they first affected performance and use all reasonable commercial endeavours to remove or avoid their cause or effect.
13. DATA PROTECTION
The Supplier acknowledges and agrees that personal data of the Supplier will be held and processed by bunkered Golf Club and furthermore that details of the Supplier's name, address and payment record may be submitted to a credit reference agency.
The Supplier shall not, and shall not purport to, assign, charge or otherwise transfer the Terms and Conditions or any rights or obligations under it without bunkered Golf Club’s prior written consent. Any such consent shall not excuse the Supplier from performance of any obligation on its part to be performed.
Any notice under these Terms and Conditions shall be given in writing and delivered by recorded delivery or personal delivery to the other Party at the address specified in the Terms and Conditions or such other address as may be notified to the sender in writing. Notices sent by recorded delivery shall be deemed to have been received forty eight (48) hours after sending (as shown by the senders receipt). Notices sent by personal delivery shall be treated as received at the time when left at the correct address of the recipient.
16. ENTIRE AGREEMENT
The Terms and Conditions (inclusive of the Cover Sheet) supersede all prior agreements and arrangements of whatever nature and set out the entire agreement and understanding between the Parties relating to its subject matter. All warranties, representations, covenants and the like as may be implied by law are hereby excluded to the fullest extent permitted by law (“Extra Contractual Representations”). The Supplier hereby waives any and all rights and remedies it may have in respect of the Extra Contractual Representations. In the event of a conflict between the Order Form and the Conditions, the parties agree that the Order Form shall prevail.
If and in so far as any part or provision of the Terms and Conditions is or becomes void or unenforceable it shall be deemed not to be or never to have been or formed a part of the Terms and Conditions and the remaining provisions of the Terms and Conditions shall continue in full force and effect.
18. INDEPENDENT CONTRACTORS
The Parties are independent contractors and nothing in the Terms and Conditions and no action taken by the Parties pursuant to the Terms and Conditions shall constitute, or be deemed to constitute, between the Parties a partnership, association, joint venture or other co-operative entity.
The failure of either Party to exercise or enforce any right conferred on that Party by the Terms and Conditions shall not be deemed to be a waiver of any such right or operate to bar the exercise or enforcement thereof at any time or times thereafter.
20. THIRD PARTY RIGHTS
Save to the extent expressly set out in these Terms and Conditions, a person who is not party to these Terms and Conditions shall not have any rights, entitlement, claims or benefits under or in connection with them.
Any variation to the Terms and Conditions shall only be effective if in writing and signed by both Parties.
22. GOVERNING LAW
All matters relative to the Terms and Conditions shall be governed and construed in all respects by the law of Scotland and the Parties hereby submit to the non-exclusive jurisdiction of the Scottish Courts.