Terms & Conditions
1.1. In these Terms:
“Contract” means any contract between ARCTIC
SLUSH and the Customer for the sale and purchase of the Goods, incorporating
these Conditions;
“Customer” means the person whose order for the
Goods is accepted by ARCTIC SLUSH;
“Delivery Point” means the place where delivery of the Goods
is to take place under condition 4;
“Goods” means any goods agreed in the
Contract to be supplied to the Customer by ARCTIC SLUSH (including any part or
parts of them);
“ARCTIC SLUSH” whose registered office is Wansbeck Business
Park, Ashington, 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 ARCTIC
SLUSH;
“Writing” (and any similar expression)
includes facsimile transmission and comparable means of communication including
electronic mail.
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 under
condition any 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 conditions apply to all ARCTIC
SLUSH’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 ARCTIC SLUSH.
2.3. Each order for Goods by the Customer
from ARCTIC SLUSH 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 ARCTIC SLUSH until a written
acknowledgement of order is issued by ARCTIC SLUSH or (if earlier) the ARCTIC
SLUSH delivers the Goods to the Customer.
2.5. The Customer must ensure that
the terms of its order are complete and accurate.
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 ARCTIC SLUSH.
3.2. All drawings, descriptive
matter, specifications and advertising issued by ARCTIC SLUSH and any
descriptions or illustrations contained in ARCTIC SLUSH’s catalogues or
brochures are issued or published for the sole purpose of giving an approximate
idea of the Goods described in them.
They will not form part of the Contract.
4. Delivery
4.1. Unless otherwise agreed in
writing by ARCTIC SLUSH delivery of the Goods shall take place at the Delivery
Point as stated in the Customer’s order.
4.2. Any dates specified by ARCTIC
SLUSH for delivery of the Goods are intended to be an estimate and time for
delivery shall not be of the essence of the Contract unless previously agreed
in Writing by ARCTIC SLUSH. The Goods
may be delivered by ARCTIC SLUSH in advance of the quoted delivery date on
giving reasonable notice to the Customer.
4.3. If for any reason the Customer
fails to take delivery of the Goods or ARCTIC SLUSH is unable to deliver the
Goods on time because the Customer has not provided appropriate instructions,
documents, licences or authorisations then without limiting and other right or
remedy available to ARCTIC SLUSH, ARCTIC SLUSH may store the Goods until actual
delivery whereupon the Customer will be liable for all related costs and
expenses (including without limitation storage and insurance).
4.4. The Customer will provide at
its expense at the Delivery Point adequate and appropriate equipment and manual
labour for unloading the Goods.
5. Non-delivery
5.1. The quantity of any
consignment of Goods as recorded by ARCTIC SLUSH upon despatch from ARCTIC
SLUSH’s place of business shall be conclusive evidence of the quantity received
by the Customer on delivery unless the Customer can provide conclusive evidence
proving the contrary.
5.2. ARCTIC SLUSH shall not be
liable for any non-delivery of Goods (even if caused by the ARCTIC SLUSH’s
negligence) unless written notice is given to ARCTIC SLUSH within 7 days of the
date when the Goods would in the ordinary course of events have been received.
5.3. Any liability of ARCTIC SLUSH
for non-delivery of the Goods shall be limited to replacing the Goods within a
reasonable time or issuing a credit note against any invoice raised 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 ARCTIC SLUSH 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 ARCTIC SLUSH has received in full (in cash or cleared funds) all
sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are
or which become due to ARCTIC SLUSH from the Customer on any account.
6.3. Until such time as property
and the Goods passes to the Customer, the Customer shall hold the Goods as ARCTIC
SLUSH’s fiduciary agent and bailee, and shall keep the Goods separate from
those of the Customer and the third parties and properly stored, protected and
insured and identified as ARCTIC SLUSH’s property, but the Customer may resell
or use the Goods in the ordinary course of its business.
6.4. 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 ARCTIC SLUSH, 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 ARCTIC SLUSH, but if the Customer
does so all monies owing by the Company to ARCTIC SLUSH shall (without limiting
any other right or remedy of ARCTIC SLUSH) forthwith become due and payable.
6.6. ARCTIC SLUSH shall be entitled
to recover payment for the Goods notwithstanding that ownership of any of the
Goods has not passed from the ARCTIC SLUSH.
7. Price
7.1. Unless otherwise agreed by ARCTIC
SLUSH in writing the price for the goods shall be the price set out in ARCTIC
SLUSH’s price list published on the date of delivery or deemed delivery.
7.2. The price for the Goods shall be exclusive of VAT.
8. Payment
8.1. Unless otherwise agreed in
Writing by ARCTIC SLUSH, the Customer shall pay for the Goods on delivery.
8.2. Time for payment shall be of
the essence.
8.3. No payment shall be deemed to
have been received until ARCTIC SLUSH 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 ARCTIC
SLUSH to the Customer.
8.5. If the Customer fails to pay ARCTIC
SLUSH any sum due pursuant to the Contract the Customer will be liable to pay
interest to ARCTIC SLUSH 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 Barclays
Banks plc accruing on a daily basis until payment is made, whether before or
after any judgment. ARCTIC SLUSH
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 between ARCTIC SLUSH and the Customer is
terminated, ARCTIC SLUSH 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 ARCTIC SLUSH, if the Customer fails to make nay payment on
the due date, ARCTIC SLUSH shall be entitled to Charge the Customer liquidated
damages reflecting loss to ARCTIC SLUSH as follows:-
8.7.1. the sum of £7.50 or
£15.00 for each letter that ARCTIC SLUSH or ARCTIC SLUSH’s legal
representatives (respectively) send to the Customer requiring payment of the
outstanding sums; and
8.7.2. 5% of the amount
outstanding in respect of commission charged by ARCTIC SLUSH’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 in respect of
taking steps towards either court or insolvency proceedings (if such
proceedings are not concluded).
8.8. ARCTIC SLUSH reserves the
rights to claim its reasonable debt recovery costs under the Late Payment of
Commercial Debts Regulations 2002.
9. Quality
9.1. Where ARCTIC SLUSH is not the
manufacturer of the Goods, ARCTIC SLUSH will endeavour to transfer to the
Customer the benefit of any warranty or guarantee given to ARCTIC SLUSH.
9.2. ARCTIC SLUSH warrants that
(subject to the other provisions of these conditions) upon delivery of the
Goods will:
9.2.1. be of satisfactory
quality within the meaning of the Sales of Goods Act 1994;
9.2.2 be reasonably fit for
any particular purpose for which the Goods are being bought if the Customer had
made known that purpose to ARCTIC SLUSH in writing and ARCTIC SLUSH has
confirmed in writing that it is reasonable for the Customer to rely on the
skill and judgement of ARCTIC SLUSH.
9.3. ARCTIC SLUSH 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 ARCTIC SLUSH, and (if the defect is as a result
of damage in transit) to the carrier, within 7 days of the time when the
Customer discovers or ought to have discovered the defect; and
9.3.2. ARCTIC SLUSH is given a
reasonable opportunity after receiving the notice of examining such Goods and
the Customer (if asked to do so by ARCTIC SLUSH) returns such goods to ARCTIC
SLUSH’s place of business at the Customer’s cost for the examination to take
place there.
9.4. ARCTIC SLUSH 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 ARCTIC SLUSH’s oral or written
instructions as to the storage, installation, commissioning, use or maintenance
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 ARCTIC SLUSH.
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 ARCTIC SLUSH shall at its option replace such Goods (or the defective part)
or refund the price of such Goods provided that if ARCTIC SLUSH so requests,
the Customer shall, at the Customer’s expense, return the Goods or the part of
such Goods which is defective to ARCTIC SLUSH.
9.6. If ARCTIC SLUSH 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 ARCTIC SLUSH
(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 ARCTIC SLUSH for death or
personal injury caused by ARCTIC SLUSH’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. ARCTIC SLUSH’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. ARCTIC SLUSH shall not be
liable to the Customer for any indirect or consequential loss or damage (whether
for loss of profit, loss of business, depletion of goodwill or otherwise),
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. The Customer shall not
be entitled to assign the Contract or any part of it without the prior written
consent of ARCTIC SLUSH.
11.2. ARCTIC SLUSH may assign
the Contract or any part of it to any person, firm or ARCTIC SLUSH.
12. Force Majeure
12.1. ARCTIC SLUSH 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 ARCTIC SLUSH including, without
limitation, acts of God, governmental actions, war or national emergency, riot,
civil commotion, fire, explosion, flood, epidemic, 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 provided that, if the event in
question continues for a continuous period in excess of 180 days, the Customer
shall be entitled to give notice in writing to ARCTIC SLUSH to terminate the
Contract.
13. General
13.1. Each right or remedy of ARCTIC
SLUSH under the Contract is without prejudice to any other right or remedy of ARCTIC
SLUSH 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 ARCTIC
SLUSH 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 ARCTIC
SLUSH 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 formation,
existence, constructions, performance, validity and all aspects of the Contract
shall be governed by English Law and the parties submit to the exclusive
jurisdiction of the English courts.
14. Communications
14.1. All communications
between the parties about this Contract must be in writing and delivered by
hand or sent pre-paid first class post or sent by facsimile transmission:
14.1.1. (in case of
communications to ARCTIC SLUSH) to its registered office or such changed
address as shall be notified to the customer by ARCTIC SLUSH; or
14.1.2. (in the case of the
communications to the Customer) to the registered office of the addressee (in
the case of a limited company) or (in any other case) to any address of the
Customer set out in any document which forms part of this Contract or such
other address as shall be notified to ARCTIC SLUSH by the Customer.
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 facsimile
transmission on a working day prior to 4.00pm, at the time of transmission and
otherwise on the next working day.
14.3. Communications addressed
to ARCTIC SLUSH shall be marked for the attention of the Managing Director.