Interpretation
1.1. In these
Terms:
"Account
Agreement" means the Account
Agreement to which these terms are attached;
“Contract” means any contract between Polar
Krush Group and the Customer for the sale and purchase of the Goods,
incorporating these Conditions;
“Customer” means the person named in the Account
Agreement;
“Delivery
Point” means the place where delivery of
the Goods is to take place under condition 4.1;
"Force
Majeure Event" has the meaning set
out in clause 12;
“Goods” means any goods (except Polar
Krush drink dispensing machines or ice cream dispensing machines) agreed in the
Contract to be supplied to the Customer by Polar Krush Group (including any
part or parts of them);
“Polar
Krush Group” Northumbrian Ice Cream
Company Limited t/a Polar Krush Group (CRN: 2892944) whose registered office is
Wansbeck Business Park, Rotary Parkway, Ashington, Northumberland, NE63 8QW;
“Terms” means the standard terms of sale
set out in this document and (unless the context otherwise requires) includes
any special terms agreed in Writing between the Customer and Polar Krush Group;
“Writing” (and any similar expression)
includes electronic mail but excludes
fax.
1.2. In these
Terms references to any statute or statutory provision shall, unless the
context otherwise requires, be construed as a reference to that statute or
statutory provision as from time to time amended, consolidated, modified,
extended, re-enacted or replaced.
1.3. In these
Terms references to the masculine include the feminine and the neuter and to
the singular include the plural and vice versa as the context admits or
requires.
1.4. In these
conditions headings will not affect the construction of these conditions.
2. Application
of Terms
2.1. Subject to
any variation agreed under condition 2.2,
the Contract will be subject to these Terms to the exclusion of all
other terms and conditions (including any terms or conditions which the
Customer purports to apply under any purchase order, confirmation of order,
specification or other document).
2.2. These
Terms apply to all Polar Krush Group’s sales to the Customer and any variation
to these conditions and any representations about the Goods shall have no
effect unless expressly agreed in writing and signed by a director of Polar
Krush Group.
2.3. Each order
for Goods by the Customer from Polar Krush Group shall be deemed to be an offer
by the Customer to purchase Goods subject to these Terms.
2.4. No order
placed by the Customer shall be deemed to be accepted by Polar Krush Group
until a written acknowledgement of order is issued by Polar Krush Group or (if
earlier) the Polar Krush Group delivers the Goods to the Customer.
2.5. The
Customer must ensure that the terms of its order are complete and accurate.
2.6 All
requests for trade credit will be subject to credit checks being conducted. By
accepting these terms, you consent to a credit check being actioned, based on
all the details you have supplied.
2.7 If you
fail to meet our credit requirements, there may be other options available and
details can be provided after the outcome, upon request.
3. Description
3.1. The
Customer shall be responsible for ensuring the accuracy of terms of any order
submitted by it. The quantity and
description of the Goods shall be set out in the Customer’s order, if accepted
by Polar Krush Group.
3.2. All
drawings, descriptive matter, specifications and advertising issued by Polar Krush
Group and any descriptions or illustrations contained in Polar Krush Group’s
catalogues or brochures are produced for the sole purpose of giving an
approximate idea of the Goods described in them. They will not form part of the Contract nor
have any contractual force.
3.3 Polar
Krush Group reserves the right to amend the specification of the Goods if
required by any applicable statutory or regulatory requirement, and shall
notify the Customer in any such event.
4. Delivery
4.1. Unless otherwise
agreed in writing by Polar Krush Group, Polar Krush Group shall deliver the
Goods to the Delivery Point as stated in the Customer’s order.
4.2. Any dates
specified by Polar Krush Group for delivery of the Goods are intended to be an
estimate and time for delivery shall not be of the essence of the
Contract. The Goods may be delivered by
Polar Krush Group in advance of the quoted delivery date on giving reasonable
notice to the Customer.
4.3. The
Customer will provide at its expense at the Delivery Point adequate and
appropriate equipment and manual labour for unloading the Goods.
4.4. If for any
reason the Customer fails to take delivery of the Goods or Polar Krush Group is
unable to deliver the Goods on time because the Customer fails to provide appropriate instructions, documents,
licences, authorisations, equipment or labour then without limiting and other
right or remedy available to Polar Krush Group, Polar Krush Group may at its
discretion:
4.3.1 make a
delivery charge of £20.00 plus VAT to cover the costs incurred;
4.3.2 store the
Goods until actual delivery whereupon the Customer will be liable for all
related costs and expenses (including without limitation storage and
insurance).
5. Non-delivery
5.1. The
quantity of any consignment of Goods as recorded by Polar Krush Group upon
dispatch from Polar Krush Group’s place of business shall be conclusive
evidence of the quantity received by the Customer on delivery unless the
Customer can provide evidence to the contrary acceptable to Polar Krush Group,
acting reasonably.
5.2. Polar
Krush Group shall not be liable for any failure to deliver all or part of the
Goods (even if caused by the Polar Krush Group’s default) unless written notice
of such failure is given to Polar Krush Group within 7 days of the date when
the Goods would in the ordinary course of events have been received. Polar Krush Group shall have no liability for
any failure to deliver the Goods to the extent that such failure is caused by a
Force Majeure Event or the Customer's failure to provide the Supplier with
adequate delivery instructions or any other instructions that are relevant to
the supply of the Goods, or failure to supply adequate equipment or manual
labour for unloading the Goods at the Delivery Point.
5.3. The liability
of Polar Krush Group for failure to deliver the Goods of any part of them shall
be limited to making delivery of the non-delivered Goods within a reasonable
time, or issuing a credit note for the undelivered goods against any invoice
raised by Polar Krush Group for such Goods.
6. Risk/Title
6.1. The Goods
are at the risk of the Customer from the time of delivery or if the Customer
wrongfully fails to take delivery of the Goods, at the time when Polar Krush
Group has tendered delivery of the Goods.
6.2. Notwithstanding
delivery and the passing of risk in the Goods, ownership of the Goods shall not
pass to the Customer until the earlier of:
6.2.1 Polar Krush
Group has received in full (in cash or cleared funds) all sums due to it in
respect of the Goods and all other sums which are or which become due to Polar
Krush Group on any account, in which case title to the Goods shall pass at the
time of payment of all such sums; and
6.2.2 the Customer
resells the Goods, in which case title to the Goods shall pass to the Customer
at the time specified in clause 6.4.
6.3. Until such
time as property and the Goods passes to the Customer, the Customer shall hold
the Goods as Polar Krush Group’s fiduciary agent and bailee, and shall keep the
Goods separate from those of the Customer and
any third party, and properly stored, protected and insured and
identified as Polar Krush Group’s property.
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 Polar Krush Group receives payment for
the Goods. However, if the Customer
resells the Goods before that time:
6.4.1 it does so
as principal and not as Polar Krush Group's agent; and
6.4.2 title to the
Goods shall pass from Polar Krush Group to the Customer immediately before the
time at which resale by the Customer occurs.
6.5. Until such
time as the property and the Goods passes to the Customer (and provided the
Goods are still in existence and have not been resold), the Seller may at any
time require the Customer to deliver up the Goods to Polar Krush Group, and if
the Customer fails to do so forthwith, enter on any premises of the Customer or
any third party where the Goods are stored and repossess the Goods.
6.5. The
Customer shall not be entitled to pledge or in any way charge by way of
security for indebtedness any of the Goods which remain the property of Polar
Krush Group, but if the Customer does so all monies owing by the Company to
Polar Krush Group shall (without limiting any other right or remedy of Polar
Krush Group) forthwith become due and payable.
6.6. Polar
Krush Group shall be entitled to recover payment for the Goods notwithstanding
that ownership of any of the Goods has not passed from the Polar Krush Group.
7. Price
7.1. Unless otherwise
agreed by Polar Krush Group in writing the price for the goods shall be the
price set out in Polar Krush Group’s price list published on the date of
delivery or deemed delivery.
7.2. The price
for the Goods shall be exclusive of:
7.2.1 value added
tax (VAT) which the Customer shall additionally be liable to pay to the
Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
7.2.2 the costs
and charges of packaging, insurance and transport of the Goods, which shall be
invoiced to the Customer.
7.3. Polar
Krush Limited may increase the prices set out in its published price list:
7.3.1 with effect
from February 1st of each year during the term of the Contract without notice
to the Customer, and
7.3.2 at any other
time by giving up to 14 days' notice to the Customer.
8. Payment
8.1. The
Customer shall pay each invoice submitted by Polar Krush Group immediately upon
presentation, or if Polar Krush Group has agreed to give the Customer trade
credit, in accordance with any credit terms agreed.
8.2 Where
Polar Krush Group has not agreed to grant the Customer trade credit, it shall
not be obliged to deliver the Goods unless the invoice in relation thereto
shall have been paid in full.
8.2. Time for
payment shall be of the essence.
8.3. No payment
shall be deemed to have been received until Polar Krush Group has received
cleared funds.
8.4 The
Customer shall make all payments due under the Contract without any deduction
whether by way of set-off, counterclaim, discount, abatement or otherwise
unless the Customer has a valid court order requiring an amount equal to such
deduction to be paid by Polar Krush Group to the Customer. Acceptable methods
of payments are Credit/Debit/Direct Debit/Paypal,
BACS Transfers
8.5. If the
Customer fails to pay Polar Krush Group any sum due pursuant to the Contract
the Customer will be liable to pay interest to Polar Krush Group on such sum
from the due date for payment at the annual rate of 8% above the base lending
rate from time to time of Clydesdale Bank plc accruing on a daily basis until
payment is made, whether before or after any judgment. Polar Krush Group reserves the right to claim
interest under the Late Payment of Commercial Debts (Interest) Act 1998 and
Late Payment of Commercial Debts Regulations 2002.
8.6. For the
avoidance of doubt, in the event that any contract for the provision of
equipment between Polar Krush Group and the Customer is terminated, Polar Krush
Group shall not be obliged to either take back or repurchase from the Customer
any Goods ordered or purchased by it.
8.7. Without
prejudice to any other right or remedy of Polar Krush Group, if the Customer
fails to make any payment on the due date, Polar Krush Group shall be entitled
to Charge the Customer liquidated damages reflecting loss to Polar Krush Group
as follows:-
8.7.1. Any payment
issues that we cannot resolve at the earliest opportunity will be subject to
charges. The charges we would apply would be £5.00 for each telephone call,
£10.00 for each letter and £20.00 for each recorded letter needed to secure
payment.
8.7.2. 5% of the
amount outstanding in respect of commission charged by Polar Krush Group’s
legal representatives in pursuing the outstanding sums;
8.7.3. fixed costs,
disbursements and other expenses in issuing a summons in the County Court or in
commencing insolvency proceedings (including the issue of statutory demands),
such sums to be charged in accordance with the scales for court fees and costs
currently in existence from time to time; and
8.7.4. £500.00 plus
reasonable expenses in respect of taking steps towards either court or
insolvency proceedings (if such proceedings are not concluded).
8.8. Polar
Krush Group reserves the rights to claim its reasonable debt recovery costs
under the Late Payment of Commercial Debts Regulations 2013.
9. Quality
9.1. Where
Polar Krush Group is not the manufacturer of the Goods, Polar Krush Group will
endeavour to transfer to the Customer the benefit of any warranty or guarantee
given to Polar Krush Group.
9.2. Save where
clause 9.1 applies, Polar Krush Group warrants that (subject to the other
provisions of these conditions) upon delivery of the Goods will conform in all
material respects with their description and any applicable specification.
9.3. Polar
Krush Group shall not be liable for a breach of any of the warranties in
condition 9.2 unless:
9.3.1. the Customer
gives written notice of the defect to Polar Krush Group, and (if the defect is
as a result of damage in transit) to the carrier, within 7 days of receipt of
the item.
9.3.2. Polar Krush
Group is given a reasonable opportunity after receiving the notice of examining
such Goods and the Customer (if asked to do so by Polar Krush Group) returns
such goods to Polar Krush Group’s place of business at the Customer’s cost for
the examination to take place there.
9.4. Polar
Krush Group shall not be liable for a breach of any of the warranties in
condition 9.2 if:
9.4.1. the Customer
makes any further use of such Goods after giving such notice; or
9.4.2. the defect
arises because the Customer failed to follow Polar Krush Group’s oral or
written instructions as to the storage, or use of the Goods or (if there are
none) good trade practice; or
9.4.3. the Customer
alters or repairs such Goods without the written consent of Polar Krush Group.
9.5. Subject to
conditions 9.3 and 9.4, if any of the Goods do not conform with any of the
warranties in condition 9.2 Polar Krush Group shall at its option replace such
Goods (or the defective part) or refund the price of such Goods provided that
if Polar Krush Group so requests, the Customer shall, at the Customer’s
expense, return the Goods or the part of such Goods which is defective to Polar
Krush Group.
9.6. If Polar
Krush Group complies with condition 9.5 it shall have no further liability for
a breach of any of the warranties in condition 9.2 in respect of such Goods.
10. Limitation
of Liability
10.1. Subject to
condition 9, the following provisions set out the entire financial liability of
Polar Krush Group (including any liability for the acts or omissions of its
employees, agents and sub-contractors) to the Customer in respect of:
10.1.1. any breach of
these conditions; and
10.1.2. any
representation, statement or tortuous act or omission including negligence
arising under or in connection with the Contract.
10.2. All
warranties, conditions and other terms, implied by statute or common law (save
for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to
the fullest extent permitted by law, excluded from the Contract.
10.3. Nothing in
these conditions excludes or limits the liability of Polar Krush Group for
death or personal injury caused by Polar Krush Group’s negligence or fraudulent
misrepresentation.
The
Customer’s attention is in particular drawn to the provisions of condition
10.4.
10.4. Subject to
conditions 10.2 and 10.3:
10.4.1. Polar Krush
Group’s total liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation or otherwise, arising in connection with the
performance or contemplated performance of this Contract shall be limited to
the price of the Goods; and
10.4.2. Polar Krush
Group shall not be liable to the Customer for any loss of profit, loss or sales
or business, loss or agreements or contracts, loss of or damage to goodwill, or
any indirect or consequential loss or damage, costs, expenses or other claims
for consequential compensation whatsoever (howsoever caused) which arise out of
or in connection with the Contract.
11. Assignment
11.1. Polar Krush
Group may at any time assign, transfer, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other manner with all or any of
its rights or obligations under the Contract.
11.2. The Customer
may not assign, transfer, mortgage, charge, subcontract, delegate, 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 the
Supplier.
12. Force
Majeure
12.1. Polar Krush
Group reserves the right to defer the date of delivery or to cancel the
Contract or reduce the volume of the Goods ordered by the Customer (without
liability to the Customer) if it is prevented from or delayed in the carrying
on of its business due to circumstances beyond the reasonable control of Polar
Krush Group including, without limitation, acts of God, governmental actions,
war or national emergency, riot, civil commotion, fire, explosion, flood,
global pandemic, lock-outs, strikes or other labour disputes (whether or not
relating to either party’s workforce), or restraints or delays affecting
carriers or inability or delay in obtaining supplies of adequate or suitable
materials ("Force Majeure Event") provided that, if the Force Majeure
Event continues for a continuous period in excess of 180 days, the Customer
shall be entitled to give notice in writing to Polar Krush Group to terminate
the Contract.
13. General
13.1. Each right
or remedy of Polar Krush Group under the Contract is without prejudice to any
other right or remedy of Polar Krush Group whether under Contract or not.
13.2. If any
provision of the Contract is found by any court, tribunal or administrative
body of competent jurisdiction to be wholly or partly illegal, invalid, void,
voidable, unenforceable or unreasonable it shall to the extent of such
illegality, invalidity, voidness, voidability, unenforceability or
unreasonableness be deemed severable and the remaining provisions of the
Contract and the remainder of such provision shall continue in full force and
effect.
13.3. Failure or
delay by Polar Krush Group in enforcing or partially enforcing any provision of
the Contract will not be construed as a waiver of any of its rights under the
Contract.
13.4. Any waiver
by Polar Krush Group of any breach of, or any default under, any provision of
the Contract by the Customer will not be deemed a waiver of any subsequent
breach or default and will in no way affect the other terms of the Contract.
13.5. The parties
to this Contract do not intend that any term of this Contract will be
enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by
any person that is not a party to it.
13.6. 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.
13.7 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 the Contract or its subject
matter or formation.
14. Communications
14.1. All
communications between the parties about this Contract must be in writing and
delivered by hand, by email, or sent pre-paid first class post:
14.1.1. (in case of
communications to Polar Krush Group), if delivered by hand or by pre-paid first
class post to its registered office or such changed address as shall be
notified to the Customer by Polar Krush Group in accordance with this clause,
or if sent by email to sales@polarkrush.co.uk; or
14.1.2. (in the case
of the communications to the Customer) if delivered by hand or by pre-paid
first class post to the registered office (if a company) or its principal place
of business (in any other case), or if sent by email to the address of the
"Ordering Contact" as set out in the Account Agreement (or such other
address as the Customer may notify in accordance with this clause..
14.2. Communications
shall be deemed to have been received:
14.2.1. if sent by
pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and
public holidays) after posting (exclusive of the day of posting);
14.2.2. if delivered
by hand, on the day of delivery;
14.2.3. if sent by
email, at the time of transmission, or, if this time falls outside business
hours, when business hours resume. In
this clause 14.2.3 business hours means 9.00a, to 5.00pm Monday to Friday on a
day that is not a public holiday in the place of receipt.
14.3. Communications
addressed to Polar Krush Group shall be marked for the attention of the
Managing Director.