These terms and conditions and the relevant sales invoice (together “the Contract”) shall constitute the entire agreement between the customer named on the Order (the “Customer”) and FORESIGHT SPORTS STUDIO HK LIMITED, a company registered in Hong Kong (the “Company”) relating to the sale and purchase of the products and services that are the subject of the Contract and detailed on the Order (the “Product(s) and Services”). Notwithstanding any other documentation between the parties, all orders for Product(s) and Services shall be deemed to be an offer by the Customer to purchase Product(s) and Services pursuant to the Order and the Company’s acceptance of the Order is expressly made conditional on the Customer’s acceptance of these terms and conditions which shall prevail over any other document that purports to exclude or surpass them. The Company is under a legal duty to supply goods that are in conformity with the contract. These terms and conditions may only be varied with the express written consent of the Company referencing these terms and conditions.
2. Amendments to Order and Cancellation
2.1 Orders accepted by the Company cannot be amended or cancelled, or shipments deferred, by the Customer, except with the written consent of the Company and upon terms that will compensate the Company against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of the amendment, cancellation or deferral on a full indemnity basis, and including a re-stocking fee where requested by the Company.
2.2 The Company shall be entitled to cancel the Order at any time by giving written notice to the Customer. If the Company exercises its right to cancel it shall have no liability in respect of the Order or in respect of any damage whatever arising from the cancellation other than to return any deposit paid in accordance with clause 3.2.
2.3 If the Customer is a consumer, the terms of the Contract will not affect any rights which the Customer may have under any Act of Parliament and which cannot be excluded by agreement. Under The Consumer Contracts Regulations 2013 a consumer has the right to cancel this contract within 14 days without giving any reason:
(i) from the day of the conclusion of the contract, in the case of a service or supply of digital content, or
(ii) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the goods, in the case of a sales contract, or
(iii) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the last good, in the case of a contract relating to multiple goods ordered by the consumer in one order and delivered separately, or
(iv) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the last lot or piece, in the case of a contract relating to the delivery of a good consisting of multiple lots or pieces, or
(v) from the day on which the Customer acquires or a third party other than the carrier and indicated by the Customer acquires physical possession of the first good, in the case of a contract for regular delivery of goods during a defined period of time.
To exercise the right to cancel the Customer must inform the Company of the decision to cancel this contract by a clear statement in writing. To meet the cancellation deadline it is sufficient to send the written cancellation communication before the cancellation period has expired. In the event of a cancellation under this clause 2.3 the Company will reimburse all payments received from the Customer including the costs of delivery (except for the supplementary costs arising if the Customer chose a type of delivery other than the least expensive type of standard delivery offered by the Company), and subject to a deduction from the reimbursement for loss in value of any Product(s) supplied if the loss is the result of unnecessary handling or use by the Customer. The Company will make the reimbursement without undue delay, and not later than:
(a) 14 days after the day the Company receives back any goods supplied, or
(b) (if earlier) 14 days after the day the Customer provides evidence that the Customer has returned the goods, or
(c) if there were no goods supplied 14 days after the day on which the Company was informed about the Customer’s decision to cancel this contract.
The Company will make the reimbursement using the same means of payment as the Customer used for the initial transaction, unless expressly agreed otherwise, and in any event the Customer will not incur any fees as a result of the reimbursement. In the case of the supply of Product(s) the Customer shall send back the goods or hand them over to the Company at Unit 16 The Pines Business Park, Guildford, Surrey, GU3 3BH for the attention of the Operations Director, without undue delay and in any event not later than 14 days from the day on which the Customer communicates the Customer’s cancellation of this contract to the Company. The deadline is met if the Customer sends back the goods before the period of 14 days has expired. The Customer will bear the costs of returning the goods. The Customer is only liable for any diminished value of the Product(s) resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the Product(s). In the case of a service if the Customer requested to begin the performance of the services during the cancellation period the Customer will pay the Company an amount which is in proportion to what has been performed until the Customer communicated the written cancellation in comparison with the full coverage of the contract. For any complaint in relation to this clause and consumer rights the Customer should contact the Operations Director at the Company.
3. Price and Payment
3.1 The Company sells the Product(s) and Services at the Price set out on the Order (the ”Price”) which unless otherwise stated by the Company is inclusive of all Hong Kong import duties and import costs. Full payment (cleared funds) is required to initiate an order except in the case of a full simulator order as per 3.2 – 3.2 below. The Customer is responsible for any local duties and taxes where the delivery location is outside of the Hong Kong.
3.2 For full simulator orders and orders that require manufacture or installation a non-refundable deposit of 50% of the Price (plus VAT where applicable) is due from the Customer at the time the Order is placed. Where the Product(s) and Services include installation by the Company the balance of the Price is due 7 days before the date of delivery or prior to shipping as advised by the Company in accordance with clause 4.1. Where the Product(s) are not installed by the Company the balance is payable prior to shipment to or collection by or on behalf of the Customer.
3.3 After receipt of the Order and at any time prior to delivery, the Company reserves the right to revise the Price in the event of any change in its costs, or the prevailing conditions, or the Customer changing an installation date once this has been agreed. In such circumstances the Company will notify the Customer in writing within 7 days of the determination of the revised Price and the Customer may then cancel the Order in writing to the Company within 7 days of receipt of the revised Price, unless in the meantime the Customer accepts the Order by allowing delivery of the same.
3.4 Where the Company provides installation services the Company reserves the right to charge the Customer additional sums in relation to any costs and inconvenience caused by matters beyond the control of the Company, including but not limited to agreed installation dates being changed by the Customer or their representatives, delays or extra works caused by a change in design, the site not being ready on the agreed date in accordance with the requirements of the Company, and for delays and extra works carried out by the Company pursuant to matters that arise during the installation.
3.5 The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim which the Customer may have or allege to have against the Company.
4. Delivery and Risk
4.1 Unless otherwise stated on the order form or invoice the Price includes all freight, insurance and other expenses incurred in connection with the delivery of the Product(s) and Services by the Company or its nominated agent. The time of delivery will be at the Company’s discretion unless other arrangements are made
Foresight Sports Studio HK Limited, Parkview Clubhouse, 88 Tai Tam Reservoir Rd, Tai Tam, Hong Kong
Registered address as business address above.
Document Reference: Delivery is conditional upon payment of the Price in accordance with clause 3.2. The Customer shall make all necessary arrangements to receive the Product(s) and Services at the time specified by the Company and unless otherwise agreed in the Order the Customer is responsible for the unloading of the Product(s) and moving them to the required position(s) on site. The Customer shall ensure that it has made all arrangements necessary to conform with the Pre-Installation Checklist (which should be completed and returned as early as possible in order that an installation date can be scheduled) or other documents as required by the Company.
4.2 The time of delivery and installation is estimated only and is not guaranteed by the Company due to the Company’s importation of the Product(s) and the resultant lead times and the Company shall have no liability to the Customer for any late delivery or installation. The Company shall inform the Customer as soon as practicable if an Order will be delayed and provide the Customer with a new estimated delivery and installation date.
4.3 Delays in the delivery of an Order shall not entitle the Customer to:
4.3.1 refuse to take delivery of the Order; or
4.3.2 terminate this Contract.
4.4 The Company shall have no liability to the Customer for the Customer’s failure to take delivery of the Product(s) and Services for any reason and the Company shall at its sole discretion either store the Product(s) at the Customer’s expense until delivery can be made or dispose of the Product(s).
4.5 For simulator sales or sales of bulky items the Customer shall notify the Company not less than 14 days prior to delivery and/or installation of any requirements or restrictions affecting delivery of the Product(s) and of any health and safety and/or working practices or procedures that must be adopted by the Company. The Company reserves the right to make an additional charge if any such requirements, restrictions, practices or procedures increase its costs of delivery or installation or any other of the Services.
4.6 Where the Customer provides assistance for the Company’s technician(s) to utilise as needed during any installation process the additional personnel must be covered by the Customer’s insurance policy which should provide adequate cover in relation to accidents etc.
4.7 Where the Company or its agents deliver the Product(s), risk shall pass to the Customer when the delivery vehicle enters onto the Customer’s property, or, if it is not possible for the delivery vehicle to enter the Customer’s property, when the delivery vehicle parks for the Product(s) to be unloaded onto the Customer’s property. The Customer shall insure accordingly.
4.8 Where the Customer collects the Product(s) from the Company or arranges collection via a third party the risk shall pass to the Customer at the point the Customer or third party take possession of the Product(s), or immediately prior to the Product(s) being loaded onto or into the collection vehicle, whichever is the sooner.
5. Inspection and Acceptance
5.1 Receipt by the Company of the Order and or an initial deposit payment shall be conclusive evidence of the sale. All sales are final and save for defective Product(s), no returns will be accepted without prior written authorisation from the Company.
5.2 The Customer must examine the Product(s) immediately upon delivery and if the Product(s) are being installed by the Company, again immediately upon installation and in either case within 5 days thereafter notify the Company in writing of any damage or defects. At the Company’s election it may inspect the alleged faulty Product(s) at the installation site or require the alleged faulty Product(s) be returned to the Company (or such other place as it shall reasonably direct) for inspection. The Customer will return any allegedly faulty Product(s) within 14 days of such request. The Customer will pay the costs and expenses of any such return and will pay to the Company the reasonable costs of any tests carried out on the Product(s) (such cost to be certified by the Company) together with the costs of return thereof to the Customer. The Company will reimburse such costs and expenses only to the extent they are reasonable and where the defect is clearly the liability of the Company.
5.3 In the absence of any notice of defect pursuant to clause 5.2, the Customer will be deemed to have examined and accepted the Product(s) in full. Where the Contract is for the sale of two or more Products comprising a single unit, then, in accepting any of the Products included in the one unit, the Customer (unless expressly stated to the contrary) is deemed to have accepted all of the Products making up that unit.
6. Training and Support
Unless otherwise stated by the Company, any training will be provided remotely by telephone or in the case of on-site installation immediately following installation in which case the Customer should ensure that the appropriate personnel are available. The Company shall provide technical support to the Customer in accordance with the New Customer Support section of the Foresight Sports Asia – Hong Kong Support document or Swing Catalyst documentation or other documents made available by the Company that relate to customer support and which are relevant to the Customer’s country of location. The availability and hours of operation of telephone support are between 9am to 5pm Hong Kong time weekdays (or such other number as the Company may notify the Customer). Charges for other additional back-up services shall be as specified in the support documentation, support contracts and price lists from time to time in force, and available on request from the Company.
7. Warranties, Liabilities and Remedies of the Customer
7.1 Subject to the provisions of the Contract and the Customer’s strict compliance with the Contract and guidance and instructions in the manual supplied with the Product (”the Manual”) and all other conditions confirmed in writing to the Customer from time to time, the Company warrants for a period of one year from the date of shipping that the Product(s) will conform to the manufacturer’s specifications and warranties as at the date of the Order, or any specifications provided by the Customer and expressly agreed to in the Order by the Company. If during the one year limited warranty period the Product is found by the Company to be defective, the Company will either repair the Product, replace the defective Product with a new Product, or exchange the Product with an equivalent Product. This limited warranty is available only to the original purchaser of the Product(s) (unless in the case of a simulator the Company carries out the de-installation and re-installation of the Product) and is expressly made in lieu of all other warranties, express or implied.
7.2 The warranty in section 7.1 does not apply to Product(s) that have been damaged by accident, shipment, handling or abuse, or alterations or repairs not performed by the Company including the addition of any software to the computer or the connection to any web or internet site or service not approved by the Company, or any defect arising from wilful damage or negligence of the Customer, or failure to follow the Company’s reasonable instructions for operation and maintenance including but not limited to the Manual. Consumable items including but not limited to screens, tees, hitting mats, GC2 flash modules and projector bulbs and other items that wear out due to normal usage are excluded from the warranty. Items not manufactured by the Company or Foresight Sports Inc or Swing Catalyst such as projectors and touchscreens are covered by their respective manufacturer or supplier’s warranty. The Company will not warrant interruptions in the performance or operation of the software, or hardware due to acts of God (power failures, storms, etc.) or computer or software viruses. The Customer acknowledges that it is not possible to test computer software and hardware in all possible circumstances and that it is therefore not possible to produce software that is free from error in all respects.
7.3 To make a claim under the limited warranty provided in clause 7.1, the Customer must (1) notify the Company’s Technical Support Department in writing of the nature of the problem within the warranty period and obtain instructions for obtaining service, and (2) at the Company’s sole discretion make the defective Product(s) available for inspection by the Company in situ or deliver the defective Product(s) to the Company, to the address designated by the Company in packaging that will protect against further damage. At the Company’s option the Product(s) may be serviced at the Customer’s location or at a location designated by the Company.
7.4 The Company shall be under no liability under the warranty (or any other warranty condition or guarantee) if the Price has not been paid in full.
8.1 This clause sets out the entire financial liability of the Company (including any liability for the acts or omissions of the Company’s respective employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract; or any use made of the Product(s) (or of any product incorporating any of the Product) by the Customer; and in respect of any representation, statement, act or omission (including negligence) arising under or in connection with the Contract or the Product(s) and Services.
8.2 Subject to the remainder of this clause 8, the Company’s total liability in connection with the Contract and the Product(s) and Services as a result of injury or damage to property as a result of the Company’s negligence shall not exceed 200% of the Price. The Company’s total liability in connection with this Contract
Foresight Sports Studio HK Limited, Parkview Clubhouse, 88 Tai Tam Reservoir Rd, Tai Tam, Hong Kong Registered address as business address above.
8.3 Subject as expressly provided in these terms and conditions the Company disclaims all other warranties and conditions of any kind with respect to the Product(s)
and Services, either express or implied, including without limitation, any implied warranties or conditions of merchantability and fitness for a particular purpose to the fullest extent permitted by the law.
8.4 The Company shall have no liability to the Customer or any other person, for special, indirect, incidental or consequential damages related to the Contract or the Product(s) and Services, including without limitation, damages due to loss of business, revenue, goodwill, data, programs or profits, regardless of the form of action, whether in contract, tort, or otherwise, and whether or not the Company is informed of the possibility thereof in advance.
8.5 Nothing in the Contract shall be construed as limiting the liability of the Company for death or personal injury arising from the Company’s negligence, fraud or fraudulent misrepresentation, breach of the terms or defective products.
9. Assumption of Risk and Customer Liability
9.1 The Customer understands that the use of the Product or a launch monitor and/or simulated golf equipment and all attendant activities including swinging golf clubs and/or hitting golf balls within an enclosed environment is a dangerous calculated risk activity which can result in serious permanent bodily injury or death to its participants. The Customer understands that the Customer, and persons who the Customer permits to use the Product(s), can be injured or killed even if they follow the instructions provided by the Company for use of the Product(s). The Customer voluntarily accepts these and all accompanying risks in consideration of the right to purchase and use the Product(s) and with full understanding of the possible consequences and potential dangers, without inducements, promises or statements other than those contained in the Contract. Without prejudice to clause 8.5 the Customer assumes all risks of any nature for any death, injury or other damages to the Customer, the Customer’s property and the property of others, foreseeable or not, which may in any way arise, directly or indirectly, out of the sale and/or use of the Product(s), and from the actions – specifically including any negligent acts or omissions – of all persons involved either directly or indirectly in the simulated golfing activities made possible by the Product(s). The Customer acknowledges and agrees that while dangerous and risky, the activities covered by this Agreement are not ultra-hazardous activities for which one can be held strictly liable. Rather, they are recreational activities in which the Customer, and persons acting through the Customer, will be voluntarily participating for their own enjoyment.
9.2 The Customer warrants and represents that all persons using the Product(s), including the Customer, if the Customer is an individual, and all employees, clients, guests and invitees of the Customer, will be in good physical and mental health and able to withstand the physical and mental stresses inherent in the activities relating to the use of the Product(s). The Customer further states and represents that he, she or it will not permit use of the Product(s) by any person who has a health-related problem that may affect the person’s ability to participate in any activities relating to the Product(s), or by any person under the influence of alcohol, controlled substances, or drugs, prescription or otherwise, prior to or during any activities involving or relating to the Product(s).
9.3 It is the Customer’s sole responsibility to determine what if any health and safety or product liability warning notices, instructions or other labelling should be displayed on the Product(s) and where they should be located or when they should be provided. Without prejudice to the Customer’s obligations stated above the Customer shall not remove, cover, alter or otherwise tamper with any such notices, instructions or labelling that may be placed on the Product(s) by the Company or original manufacturer.
9.4 The Customer should satisfy themselves prior to order that the Products and or Services and the environment in which the Products and or Services are to be incorporated including but not limited to any simulator design or structure design is suitable and safe for their circumstances and or where the Customer supplies or installs any equipment or carries out any works themselves that they are aware that the responsibility and liability for the design, safety and use of the Products and environment lies with them in accordance with this provision and the other provisions in the Contract and that they should take measures to eliminate or negate the effects of any leading edges or design elements that could lead to a golf ball bouncing back towards the player or away from the equipment at any speed that could cause damage to people or belongings including but not limited to the leading edges created by the walls and or ceiling of a simulator or indoor golf enclosure, structure or environment.
9.5 The Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly by or arising from the use or operation or possession of the Product(s) or any part of the Product(s) and from negligence (including the use of any part of the Product(s) otherwise than in accordance with the Company’s operating instructions and manuals) or default (including any noncompliance with any obligation imposed by these terms and conditions or any delay wrong information or lack of required information) or misuse by or on the part of the Customer or any person or persons other than the Company and this indemnity shall extend to any costs and expenses incurred by the Company and shall continue in force notwithstanding the termination of the Contract or any other agreement between the Customer and the Company.
9.6 The Customer shall indemnify and hold the Company harmless against any claim by or any loss or damage to any person or property occasioned directly or indirectly as a result of any breach of the Customer’s obligations under the Contract or as a result of any customisation or alteration carried out to the Product(s) by the Customer whether such works are approved by the Company or not or where the works are carried out by the Company at the request of the Customer.
9.7 The Customer shall conform with all instructions and labelling prescribed by the Company.
9.8 The Customer shall have no claims to indemnity in respect of and shall fully indemnify the Company its employees agents and representatives against any claims by third parties (and all related costs and expenses) in respect of death or personal injury (save to the extent that the Company otherwise accepts in writing and signed by a director of the Company liability therefore).
10.1 In spite of delivery having been made the title in the Product(s) shall not pass from the Company until the Customer shall have paid the Price plus VAT in full and any other sums whatever due from the Customer to the Company whether under this Contract or any other agreement.
10.2 Until title in the Product(s) passes to the Customer in accordance with Clause 10.1 the Customer shall hold the Product(s) and each of them on a fiduciary basis as bailee for the Company. The Customer shall where possible store the Product(s) (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company’s property.
10.3 Until such time as the title in the Product(s) passes from the Company, the Customer shall upon request deliver up such of the Product(s) as have not ceased to be in existence or been resold to the Company. If the Customer fails to do so the Company may enter upon any premises owned, occupied or controlled by the Customer where the Product(s) are situated and repossess the Product(s).
10.4 The Customer shall insure and keep insured with a reputable insurance company the Product(s) against all risks from the time risk passes to it in accordance with clause 4.6 until such time as title in the Product(s) is vested in it in accordance with clause 10.1 and the Customer shall indemnify the Company against any costs, claims, losses, or expenses of any kind incurred by the Company as a result of its failure to do so.
11. Third Parties
11.1 The benefit of the Contract and the warranties contained herein are personal to the Customer and may not be assigned, transferred, or dealt with in any way by the Customer.
11.2 The Customer shall indemnify the Company against any loss, cost, expense or damage incurred by the Company arising from the use or sale of the Product(s) by the Customer or any person acquiring the Product(s) through the Customer, save to the extent caused by the Company’s negligence or wilful misconduct.
12. Software License
The Customer is granted a conditional, non-transferable license to use the proprietary software originally installed with the Product(s) for as long as the Customer owns the Product(s) or as stated on the Order or invoice if the licence is non-permanent and or geographically limited. The license is conditioned upon full and timely payment by the Customer of all sums due to the Foresight Sports Studio HK Limited, Parkview Clubhouse, 88 Tai Tam Reservoir Rd, Tai Tam, Hong Kong Registered address as business address above.
No part of the Company’s proprietary software may be used separately from the Product(s). The Company reserves the right to periodically manufacture updates and enhancements to its proprietary software and to license the same on such terms and conditions as the Company may from time to time determine. Unless otherwise stated on the Purchase Order, the Price does not include any upgrades. Unless otherwise agreed, any upgrades or enhancements sold to the Customer shall be subject to the same licensing conditions and restrictions set forth herein.
13. Confidentiality and Intellectual Property
The Customer acknowledges that the Product(s) contain trade secrets of the Company and Foresight Sports Inc and/or Swing Catalyst and agrees not to reverse engineer or disassemble the Product(s). The Customer also agrees not to remove, hide, deface or tamper with any intellectual property notices or any other notices or branding appearing on the Product(s). Any attempts by the Customer to disassemble, modify or repair any Product(s) or any component parts without the express prior written authorization of the Company shall automatically render all warranties null and void.
14. Late Payment and Interest
Time of payment shall be of the essence of the Contract. Interest shall accrue from the date that the amount becomes due for payment until the date of actual payment subject to annual interest at the rate of twelve percent (12%) or the highest rate permitted by law and shall accrue at such rate after as well as before any judgment calculated on a daily basis and compounded monthly. The Customer will indemnify the Company in respect of all costs and expenses incurred in connection with the recovery of all overdue amounts.
15. Events outside the control of the Company
15.1 The Company will not be liable or responsible for any failure to perform, or a delay in the performance of, any of its obligations under the Contract that is caused by events outside its reasonable control (a “Force Majeure Event”).
15.2 The Company’s performance under the Contract is deemed to be suspended for the period that the Force Majeure Event continues, and it will have an extension of time for performance for the duration of that period. The Company will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under the Contract may be performed despite the Force Majeure Event.
16.1 The Customer agrees to use the Product(s) only in compliance with applicable law and regulations and will be solely responsible for obtaining any necessary government or other approvals applicable to the Customer’s use including but not limited to planning permissions, fire regulations, and structural loading approvals.
16.2 If any provision of the Contract shall be held to be unenforceable by a court of appropriate jurisdiction, then such provision shall be enforced to the maximum extent permitted by applicable law and the remaining provisions of the Contract shall remain in full force and effect.
16.3 The Contract is subject to Hong Kong law and the parties submit to the exclusive jurisdiction of the Hong Kong courts. The Contract represents the entire agreement between the parties and supersedes all prior agreements and understandings, written or oral. The Contract may not be modified except in writing and signed by both the Customer and a duly authorized representative of the Company.
16.4 All notices given by the Customer to the Company and vice versa must be given at the addresses of the respective parties set out on the Order. Notice will be deemed received and properly served immediately if delivered by hand or once signed for where sent by recorded or registered post.
Answers to any questions regarding the Products or the terms and conditions of the Contract may be obtained by contacting us at
[email protected] or by post to:
Foresight Sports Studio HK, Parkview Clubhouse, 88 Tai Tam Reservoir Rd, Tai Tam, Hong Kong