Terms & Conditions
Part I. Terms and Conditions Website Use
Part II. Terms and Conditions of Trading
24 May 2018
Part I. Terms and Conditions Website Use
Welcome to www.topselection.co.uk
This page tells you the terms on which you may use our website www.topselection.co.uk, whether as registered user or guest. Please read carefully before use.
By using the site, you accept the terms and agree to obey them. If you don’t accept them, please don’t use the site.
2. WHO WE ARE
www.topselction.co.uk is operated by TopSelection Ltd, a UK Limited company registered at 19-20 Bourne Court, Southend Road, Woodford Green, Essex IG8 8HD
3. USE OF THE SITE
You have permission for temporary use of the site, but we can withdraw or change our service at any time without telling you and without being legally responsible to you.
You must treat all identification codes, passwords and other security information as confidential. If we think you have failed to keep confidentiality, we are allowed to disable any security information (including your passwords and codes).
You agree to follow our acceptable use terms.
If you allow anyone else to use our site, you must make sure that they read these terms first, and that they follow them.
Only use the site as allowed by law and these terms. If you don’t, we may suspend your usage, or stop it completely.
We frequently update the site and make changes to it, but we don’t have to do this, and material on the site may be out-of-date. No material on the site is intended to contain advice, and you shouldn’t rely on it. We exclude all legal responsibility and costs for reliance placed on the site by anyone.
By using the site, you agree to us handling this information and confirm that data you provide is accurate.
4. ACCEPTABLE USE
4.1 Prohibited Uses
You may use our site only for lawful purposes. You may not use our website:
• In any way that breaches any applicable local, national or international law or regulation.
• In any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
• For the purpose of harming or attempting to harm minors in any way.
• To transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
• To knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
You also agree:
• Not to reproduce, duplicate, copy or re-sell any part of our site in contravention of the provisions of our terms of website use.
• Not to access without authority, interfere with, damage or disrupt any part of our website, any equipment or network on which our website is stored, any software used in the provision of our site or any equipment or network or software owned or used by any third party.
4.2 Suspension and Termination
We will determine, in our discretion, whether there has been a breach of this acceptable use policy through your use of our website. When a breach of this policy has occurred, we may take such action as we deem appropriate.
• Immediate, temporary or permanent withdrawal of your right to use our site.
• Issue of a warning to you.
• Legal proceedings against you for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
• Further legal action against you.
• Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
We exclude liability for actions taken in response to breaches of this acceptable use policy. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.
4.3 Changes to the Acceptable Use Policy
We may revise this acceptable use policy at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we make, as they are legally binding on you. Some of the provisions contained in this acceptable use policy may also be superseded by provisions or notices published elsewhere on our site.
5. INTELLECTUAL PROPERTY RIGHTS
We are the owner or have permissions of/for all intellectual property rights in the site and in any of the material posted on it. They are protected by copyright.
You are allowed to print copy and download extracts of any page on the site for your personal reference, but not for commercial use without permission from us. You must not alter anything, or use any illustrations, video, audio or photographs separately from the text that goes with them.
If you breach these terms, you lose your right to use our site, and must destroy or return any copies you have made.
6. OUR LEGAL RESPONSIBILITY TO YOU
We do not guarantee the accuracy of material on our site. As far as legally possible, we exclude legal responsibility for the following:
- Any loss to you arising from use of our site
- Loss of income, profit, business, data, contracts, goodwill or savings.
We also exclude, as far as legally possible, all terms and warranties or promises implied by law or by statutes.
We don’t exclude legal responsibility for death or personal injury owing to our negligence, or legal responsibility for fraud or fraudulent misrepresentation, or for anything else where exclusion is not allowed by the law.
7. COMPUTER OFFENCES
If you do anything which is a criminal offence under a law called the Computer Misuse Act 1990, your right to use the site will end straightaway. We will report you to the relevant authorities and give them your identity.
Examples of computer misuse include introducing viruses, worms, Trojans and other technologically harmful or damaging material.
You mustn’t try to get access to our site or server or any connected database or make any ‘attack’ on the site. We won’t be legally responsible to you for any damage from viruses or other harmful material that you pick up via our site.
8. LINKS TO OUR SITE
You are allowed to make a legal link to our website’s homepage from your website if the content on your site meets the standards of our acceptable use policy. We can end this permission at any time.
You mustn’t suggest any endorsement by us or association with us unless we agree in writing.
9. LINKS FROM OUR SITE
Links from our site to other sites are only for information. We don’t accept responsibility for other sites or any loss you suffer from using them.
We change these terms from time to time and you must check them for changes because they are binding on you.
11. APPLICABLE LAW
This Agreement is governed by, and is to be construed in accordance with, English law. The English Courts will have non-exclusive jurisdiction to deal with any dispute which has arisen or may arise out of, or in connection with, this Agreement.
12. CONTACT US
Please email us at firstname.lastname@example.org to contact us about any issues.
Part II. Terms and Conditions of Trading
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Contract: the contract between Top Selection and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person, company or firm who purchases the Goods from Top Selection.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Top Selection 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 sub-contractors.
Goods: the goods (or any part of them) set out in the Order.
Order: 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 Top Selection’s quotation.
Specification: any description of the Goods included on the Website.
Top Selection: Top Selection Limited a company incorporated in England and Wales under company number 04009493 and whose registered office is at 19-20 Bourne Court, Southend Road, Woodford Green, Essex IG8 8HD.
(a) 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.
(b) 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.
(c) a reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 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 are complete and accurate.
2.3 The Order shall be deemed to be accepted when Top Selection confirms acceptance of the Order (whether verbally or in writing (including automated email)), or on delivery of the Goods (whichever is the earlier) at which point the Contract shall come into existence.
2.4 Any descriptive matter or advertising produced by Top Selection and any descriptions contained on the Website are produced for the sole purpose of giving an idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods given by Top Selection shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The Goods are described in the Specification.
3.2 Top Selection reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.3 Top Selection reserves the right to make changes to Goods (in relation to its vintage on the condition that it is of similar value as the original bottle ordered) and/or to substitute one bottle for another (if the bottle ordered is out of stock.). Top Selection will notify the Customer in such circumstances and the Customer may end the contract and receive a full refund.
4.1 Top Selection shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the contract number and all relevant Customer and supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Top Selection shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Top Selection notifies the Customer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location and signature by the Customer of a delivery note.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Top Selection will endeavour to meet any delivery deadline specified by the Customer but shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide it with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to accept delivery of the Goods within three Business Days of Top Selection notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Top Selection’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Top Selection notified the Customer that the Goods were ready; and
(b) Top Selection shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If 10 Business Days after the day on which Top Selection notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Top Selection 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.
4.7 Top Selection 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.
5.1 Top Selection warrants that on delivery, the Goods shall:
(a) conform with their description and the Specification; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and be fit for any purpose held out by Top Selection.
5.2 The warranty in clause 5.1 does not apply if Top Selection are acting as an intermediary in relation to the provision of the Goods (which will be notified to the Customer during the Order process).
5.3 Subject to clause 5.4, if:
(a) the Customer gives notice in writing to Top Selection within 6 months for corked wine and 24 hours of delivery in all other circumstances that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) Top Selection is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Top Selection) returns such Goods to Top Selection’s place of business at the Top Selection cost,
Top Selection shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
5.4 Top Selection shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
(b) the defect arises because the Customer failed to follow Top Selection’s oral or written instructions as to the storage (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of wilful damage or abnormal storage conditions; or
(d) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this clause 5, Top Selection shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.6 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.
5.7 These Conditions shall apply to any replacement Goods supplied by Top Selection.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Top Selection receives payment in full (in cash or cleared funds) for the Goods and any other goods that Top Selection has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(c) notify Top Selection immediately if it becomes subject to any of the events listed in clause 8.1; and
(d) give Top Selection such information relating to the Goods as Top Selection may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Top Selection receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Top Selection’s agent; and
(b) title to the Goods shall pass from Top Selection to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 8.3(b), then, without limiting any other right or remedy Top Selection may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Top Selection may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold; and
(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.
6.6 Top Selection may at its option, agree to store Goods for the Customer. In such circumstances, the Goods shall be paid for on completion of the Order and risk and title to the Goods shall pass to the Customer immediately. Top Selection shall have no obligation to insure the Goods and shall have no liability for any loss or damage caused to them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, such other price as is agreed by the parties before the date of delivery.
7.2 Top Selection 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:
(a) any factor beyond Top Selection’s control (including foreign exchange fluctuations, increases in taxes and duties);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Top Selection adequate or accurate information or instructions.
7.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Top Selection at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 Unless agreed otherwise by Top Selection, the Customer shall pay for the Goods before they are dispatched to the Customer.
7.5 Unless agreed otherwise in relation to account Customers, Top Selection will invoice the Customer for the Goods after delivery and the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Time of payment is of the essence. Account Customers shall pay an invoice within 30 days’ of receipt.
7.6 If the Customer fails to make any payment due to Top Selection under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s 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.
7.7 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). Top Selection 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 Top Selection to the Customer.
8.1 Without limits its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to Top Selection. If the Goods have already been dispatched to the Customer and/or delivered, the Customer shall be responsible for the costs of return of the Goods and a restocking fee of 20% of the Order value together with any tax which has become due.
8.2 If the Customer terminates the Contract in accordance with clause 8.1 and the Goods have not been dispatched or delivered, the Customer shall, at Top Selection’s sole discretion, be responsible for a restocking fee of 10% of the Order value.
8.3 Without limiting its other rights or remedies, Top Selection may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) 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 7 days of that party being notified in writing to do so;
(b) 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;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in Top Selection’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.4 Without limiting its other rights or remedies, Top Selection may suspend provision of the Goods under the Contract or any other contract between the Customer and Top Selection if the Customer becomes subject to any of the events listed in clause 8.3(a) to clause 8.3(d), or Top Selection 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 this Contract on the due date for payment.
8.5 Without limiting its other rights or remedies, Top Selection 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 and remains in default not less than 5 Business Days after being notified in writing to make such payment.
8.6 On termination of the Contract for any reason the Customer shall immediately pay to Top Selection all of its outstanding unpaid invoices and interest.
8.7 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 this Contract that existed at or before the date of termination.
8.8 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.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude Top Selection’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Top Selection to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) Top Selection 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
(b) Top Selection 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.
10. FORCE MAJEURE
Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.
11.1 Assignment and other dealings.
(a) Top Selection may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Top Selection.
11.2 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
11.3 Variation. Top Selection may revise these terms and conditions at any time and shall notify the Customer in any such event.
11.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. 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.
(a) Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or 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 11.6(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 fax or email, 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.
11.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
11.8 Governing law. 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.
11.9 Jurisdiction. 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 this Contract or its subject matter or formation.