Terms & Conditions
Eskimo Joe’s Limited's Terms and Conditions of Sale:
These are the terms and conditions on which Eskimo Joe’s Limited will supply goods (the General Terms). In addition to the General Terms, the Terms of Sale at Annex 1 apply to any Products or Cups you purchase. Please read all applicable terms and conditions carefully.
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 6 OF THE GENERAL TERMS, AND CLAUSE 7 OF THE TERMS OF SALE (LIMITATION OF LIABILITY AND CUSTOMER INDEMNITY)
1. Definitions and Interpretation
The following definitions and rules of interpretation apply to the Contract:
1.1. 'Business Day' means a day other than a Saturday, Sunday or public holiday in the local jurisdiction when banks are open for business.
1.2. ‘Business Hours’ means 9am to 5pm local time during a Business Day in the local jurisdiction.
1.3. 'Contract' means the contract between the Supplier and the Customer for the supply of Products and Cups (as applicable) in accordance with these Conditions.
1.4. 'Customer' means the entity identified as the customer in the applicable order form.
1.5. 'Cups' means the containers and/or the lids for those containers, supplied by the Supplier to the Customer, in which the RDP is sold to third parties.
1.6. 'Data Protection Laws' means all laws (whether of the UK or any other jurisdiction) relating to the use, protection and privacy of Personal Data which are from time to time applicable to the Company (or any part of its business) including but not limited to the General Data Protection Regulation (EU) 2016/679 as it applied in England and Wales until 31 December 2020, the Privacy and Electronic Communications Regulations 2003, the Data Protection Act 2018 and the UK General Data Protection Regulation brought into force by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019.
1.7 'Food Hazard Risk' means an incident where the Customer believes any of the Product or RDP may be dangerous and should be recalled.
1.8. ‘Help Centre’ means the website containing instructions in respect of the preparation and dispense of the Products and which can be found at https://gbejslush.zendesk.com/hc/en-us
1.9. 'Order' means the Customer's order for the supply of Products and Cups as set out in the Customer's online order
1.10. 'Products' means the drinks (including premix syrups) made or supplied by the Supplier, details of which the Supplier will send to the Customer on request.
1.11. 'Ready to Drink Product' or 'RDP' means the Product diluted with potable water and dispensed in accordance with the Help Centre or any other instructions issued by the Supplier from time to time.
1.12. 'Supplier’ means Eskimo Joe’s Limited, a company registered in England and Wales (registration number 08997858), whose registered office is at Sanderson House Station Road, Horsforth, Leeds, LS18 5NT. References to the Supplier include its successors or assigns, and any other company in the Eskimo Joe’s Limited group of companies.
1.13. 'Terms of Sale' means the terms and conditions at Annex 1.
1.14. 'Trade Marks' means any brands, names or marks owned, licensed, used or supplied by the Supplier, details of which the Supplier will send to the Customer on request.
1.15. Unless the context otherwise requires, words in the singular shall include the plural, and in the plural shall include the singular. "Including", "includes", "in particular" or equivalent shall be construed as meaning "without limitation" or "without restriction".
1.16. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time.
1.17. A reference to writing or written includes email.
1.18. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Structure of Terms and Conditions
2.1. These General Terms apply to the supply of Products or Cups by the Supplier to the Customer.
2.2. In addition to the General Terms, the Terms of Sale shall apply to any Products and Cups purchased by the Customer from the Supplier; and
2.3. The General Terms and the Terms of Sale together (as applicable) being the "Conditions".
2.4. The Order constitutes an offer by the Customer purchase the Products or Cups in accordance with the Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.5. The Order shall only be deemed to be accepted when the Supplier issues written confirmation of the Order at which point and on which date the Contract shall come into existence.
3. Products and or Cups
3.1. Any dates specified by the Supplier for dispatch, delivery or supply of the Products or Cups are approximate only and time for dispatch, delivery or supply shall not be made of the essence by notice.
3.2. The Customer warrants that it will comply with all applicable laws, including planning and health and safety laws, in relation to its receipt and use of the Products or Cups.
4.1. All payments are exclusive of:
4.1.1. VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate prevailing on the due date of the payment concerned and in the manner from time to time prescribed by law; and
4.1.2. all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Customer will pay separately.
4.2. Payments for the Products or Cups shall be due:
4.2.1. at the time of placing the order (unless otherwise agreed by the Supplier in writing);
22.214.171.124. the Customer shall provide to the Supplier valid, up-to-date and complete account, credit or debit card details acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card for the sums specified
4.3. No payment shall be deemed to have been received until the Supplier has received cleared funds.
4.4. The Customer shall make all payments due under the Contract in full 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 the Supplier to the Customer.
5. Intellectual Property
5.1. The Customer acknowledges and agrees that the Supplier is the owner or licensor of any Trade Marks relating to the Products and the Cups.
5.2. Any goodwill derived from the use by the Customer of the Trade Marks shall accrue to the Supplier and any relevant licensors. The Supplier may, at any time, call for a document confirming the assignment of that goodwill and the Customer shall immediately execute it.
5.3. The Customer shall not do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to the Trade Marks or the reputation or goodwill associated with the Trade Marks or the Supplier or the relevant licensors, or that may invalidate or jeopardise any registration of the Trade Marks.
5.4. The Customer shall not apply for, or obtain, registration of the Trade Marks for any goods or services (or any trade or service mark which consists of, or comprises, or is confusingly similar to the Trade Marks) in any country.
5.5. The Customer represents, warrants and undertakes that it will not infringe the intellectual property rights of the Supplier (or any third party which has intellectual property rights in the Products or Cups).
6. Limitation of Liability and Customer Indemnity: The Customer's attention is particularly drawn to this clause
6.1. The following provisions along with the caps on liability included at clause 7 of the Terms of Sale (if applicable), set out the entire liability of the Supplier (including any liability for the acts or omissions of its affiliates, officers, employees, or contractors) to the Customer arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
6.2. Subject to clause 6.3 of these General Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.3. Nothing in the Contract excludes or limits the liability of the Supplier which cannot be legally excluded or limited, including liability for:
6.3.1. death or personal injury caused by the Supplier's negligence;
6.3.2. fraud or fraudulent misrepresentation;
6.3.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
6.3.4. breach of the terms implied by section 7 of the Supply of Goods and Services Act.
6.4. Subject to clause 6.3 of these General Terms, the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of revenue, loss of business, loss of anticipated savings, depletion of goodwill and/or similar losses; or for any liability for any indirect or consequential losses.
6.5. The Customer shall on demand indemnify, defend and hold harmless the Supplier, its Distributors, its affiliates, its licensors and their respective directors, officers and personnel against any and all liabilities, costs, expenses, damages and losses (whether direct, indirect or consequential) and all interest, penalties and legal costs (calculated on a full indemnity basis) and other professional costs and expenses suffered or incurred by any of them arising out of or in connection with any claim made by a third party arising out of, or in connection with, the Customer's use of the Products or Cups and/or any actual or alleged infringement of third party's intellectual property rights.
6.6. The Customer shall be liable for all legal and other costs (on a full indemnity basis) incurred by the Supplier in enforcing any provision of this Contract or recovering any sum due thereunder.
7.1. Without limiting its other rights or remedies, the Supplier may give written notice to the Customer terminating the Contract with immediate effect if:
7.1.1. the Customer fails to pay any sum payable under the Contract and fails to remedy the same within seven (7) days of notice being provided to the Customer requiring the breach to be remedied;
7.1.2. the Customer causes or permits a material breach of any of the terms of the Contract and fails to remedy the same within thirty (30) days of notice being provided to the Customer requiring the breach to be remedied;
7.1.3. 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), obtaining a moratorium, 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;
7.1.4. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 7.2.3 of these General Terms, (including in Scotland if the Customer becomes apparently insolvent or suffers sequestration to be awarded of its estate or effects or if a receiver or judicial factor or trustee is appointed for any portion of its estate or effects, it suffers any arrestment charge poinding or other diligence to be issued or levied upon it or its estate or effects or if there is exercise or threatened exercise of any landlord’s hypothec);
7.1.5. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
7.1.6. the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
7.1.7. there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001);
7.1.8. the Customer purports to assign its rights or obligations under the Contract;
7.1.9. the Customer defaults under any other agreement with the Supplier; and/or
7.1.10. the Customer has given any information which is inaccurate or untrue in connection with the Contract.
7.2. Without limiting its other rights or remedies, the Customer may terminate this Contract:
7.2.1. by giving the Supplier fourteen (14) days' written notice if the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
7.2.2. the Supplier 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), obtaining a moratorium, 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;
7.2.3. any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2.2 of these General Terms, (including in Scotland if the Supplier becomes apparently insolvent or suffers sequestration to be awarded of its estate or effects or if a receiver or judicial factor or trustee is appointed for any portion of its estate or effects, it suffers any arrestment charge poinding or other diligence to be issued or levied upon it or its estate or effects or if there is exercise or threatened exercise of any landlord’s hypothec); or
7.2.4. the Supplier suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
8. Consequences of Termination
8.1. On termination of the Contract, the Customer shall:
8.1.1. immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and, in respect of Products and Cups supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
8.1.2. no longer be in possession of the Products and/or Cups with the Supplier's consent;
8.1.3. return or dispose (at the Supplier's election) and make no further use of any Products and/or Cups which have not been used.
8.2. Termination of the Contract, however arising, 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 the Contract which existed at or before the date of termination.
8.3. The Customer acknowledges that the Supplier shall not be responsible for any loss of or damage arising out of or in connection with any negligence, misuse, mishandling of the Products and/or Cups or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (whether direct, indirect or consequential) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Supplier arising out of, or in connection with any failure by the Customer to comply with the Contract.
8.4. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
9. Force Majeure
9.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
9.2. If the period of delay or non-performance of the Supplier continues and results in the Supplier being (i) unable to procure the delivery of any Products for more than 90 days; (ii) unable to procure the delivery of any Cups for more than 180 days; then either party may terminate the Contract by giving 30 days' written notice to the other party.
10. Confidential Information
10.1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2 of these General Terms.
10.2. Each party may disclose the other party's confidential information:
10.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10; and
10.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3. Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
11. Data Protection
11.2. The Supplier and the Customer shall comply with all applicable requirements under Data Protection Laws.
12. Notices and Changes
12.1. The Supplier may amend the Conditions from time to time to:
12.1.1. reflect changes in relevant laws and regulatory requirements; and
12.1.2. implement minor adjustments and improvements to the Products or Cups. Such changes will not affect the Customer's overall use of the Products or Cups.
12.2. The Supplier may also make more significant amendments to the Conditions from time to time on giving the Customer at least 7 days' prior written notice. If the Customer does not agree to any such amendment, the Customer may terminate the Contract by giving the Supplier written notice at any point prior to the expiry of the 7 days' notice referred to above.
12.3. Notwithstanding clauses 12.1 and 12.2, the parties may also agree to vary the Contract at any time provided such variation is recorded in writing and signed by the parties (or their authorised representatives).
12.4. Any document or notice given by the Supplier under or in connection with the Contract will be validly given if sent to the email address in the order form, order confirmation, invoice, delivery note or such other email address as the Customer may notify to the Supplier from time to time. Such document or notice shall be deemed to have been received by the Customer at the date of transmission of the email.
12.5. 12.5. Unless otherwise stated, notices to the Supplier should be sent via an online support request on the Supplier's help centre (at https://gbejslush.zendesk.com/hc/en-us/requests/new). Such notice will not be effective until the Supplier has verified the Customer's account (once verified, the notice will be effective from the date of transmission of the support request).
13.1. Telephone Recordings. To help improve its service, training, and to evidence communications with the Customer and in the interests of security, the Supplier may, subject to complying with all applicable requirements under Data Protection laws, monitor and/or record the telephone calls made with it.
13.2. Customer's behaviour. The Equality Act 2010, protects employees from any discrimination, harassment, bullying and inappropriate behaviour that occurs when a person or a group of people behaves unreasonably towards a worker or a group of workers, and may involve aggressive, abusive or intimidating conduct or language; offensive, racist, sexist, ageist, belittling or humiliating comments. The Supplier does not accept any discrimination, harassment, bullying or inappropriate behaviour towards employees, contractors or staff and the Supplier reserves the right to take action to ensure a safe working place. The Customer shall procure that its representatives shall not engage in any such behaviour towards the Supplier or any of its staff.
13.3. Order forms. Any order form may be signed by way of Electronic Signature.
13.4.1. The Supplier may at any time novate, 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.
13.4.2. The Customer may not novate, 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.
13.5. Third Party Rights. The parties to the 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; but the Supplier may enforce any term of the Contract that provides a benefit to a third party on behalf of such third party, as if it were a party to the Contract.
13.6. No partnership or joint venture. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.7. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.8. Entire agreement
13.8.1. The Contract constitutes the entire agreement between the parties in relation to its subject matter, and supersedes and extinguishes all previous agreements, terms and conditions, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to such subject matter, including any terms or conditions which the Customer purports to apply under any order, purchase order, confirmation order or other document.
13.8.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract, unless such representation is expressly agreed in writing and signed by a director of the Supplier.
13.8.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
13.8.4. Nothing in this clause 13.8 shall limit or exclude any liability for fraud.
13.9. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 13.9, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.10. 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.
13.11. 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 the Contract or its subject matter or formation.
ANNEX 1: TERMS OF SALE
1. The Customer's Obligations
1.1. The Customer undertakes and agrees to:
1.1.1. prepare and dispense the RDP strictly in line with the procedures supplied in the Help Centre or any other instructions issued by the Supplier from time to time
1.1.2. only use the Products, Cups and RDP in accordance with the Contract, and for no other purpose; and
1.1.3. not to change any aspects of the Trade Marks, logos, images or branding of the Products and Cups.
2. The Supplier's Obligations
2.1. The Supplier agrees subject to clause 3.1 of the General Terms, to use its reasonable endeavours to deliver (or procure the delivery of) the Products and Cups specified in each Order to the Delivery Location within a reasonable time.
3.1. Delivery of the Products and/or Cups shall be completed on the completion of the unloading of the Products and/or Cups (as applicable) at the Delivery Location.
3.2. Any liability of the Supplier for non-delivery of the Products and/or the Cups shall be limited to replacing such Products and/or Cups within a reasonable time or issuing a refund or credit note at the pro rata contract rate against any invoice raised for such Products and/or Cups.
3.3. If the Customer fails to accept delivery of the Products and/or Cups within three (3) Business Days of the Supplier or the carrier appointed for or on behalf of the Supplier notifying the Customer that the Products and/or Cups are ready for delivery, then except where such failure or delay is caused by a force majeure event (in accordance with clause 9 of the General Terms) or by the Supplier's failure to comply with its obligations under the Contract:
3.3.1. delivery of the Products and/or Cups shall be deemed to have been completed at 9:00am on the third Business Day following the day on which the Supplier or the carrier appointed for or on behalf of the Supplier, notified the Customer that the Products and/or Cups were ready; and
3.3.2. the Supplier shall arrange to store the Products and/or Cups until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
3.4. If five (5) Business Days after the day on which the Supplier or the carrier appointed for or on behalf of the Supplier notified the Customer that the Products and/or Cups were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products and/or Cups and charge the Customer for any shortfall below the price of the Products and/or Cups.
3.5. Where the Customer purchases the Products and/or Cups from a Distributor pursuant to clause 1.1.2 of these Terms of Sale, the Customer agrees that the enforcement of any rights against the Distributor(s) must be brought by way of direct action against the Distributor(s), and the Customer has no rights of claim against the Supplier, whether by rights of set off or claim or counterclaim (or otherwise) against the Supplier.
4. Food Hazard Risk
4.1. In the event of any Food Hazard Risk, the Customer agrees that time is of the essence and shall inform the Supplier with all the information reasonably available to it concerning the Product or RDP, using the relevant details on the Supplier's help centre (https://gbejslush.zendesk.com/hc/en-us)
4.2. The Customer shall not institute a recall concerning the Product without first notifying the Supplier and obtaining the Supplier's written approval of such recall.
4.3. The Supplier, acting reasonably, may (but shall not be required to) take control of, and manage, any recall concerning the Product in accordance with its internal product recall procedure.
5. Risk and Title
5.1. The risk in the Products and the Cups pass to the Customer on delivery of the Products and/or the Cups in accordance with clauses 3.1 and 3.3 of these Terms of Sale.
5.2. Title to the Products and the Cups shall not pass to the Customer until the earlier of:
5.2.1. the Supplier receiving in full (in cash or cleared funds) all sums due to it in respect of the Products and the Cups, and all other sums which are, or which become due to the Supplier from the Customer on any account; and
5.2.2. the Customer reselling the Products and the Cups, in which case title shall pass to the Customer at the time specified in clause 5.4.3 of these Terms of Sale.
5.3. Until title of the Products and the Cups has passed to the Customer, the Customer must:
5.3.1. hold the Products and the Cups on a fiduciary basis as the Supplier's bailee;
5.3.2. store the Products and the Cups (at no cost to the Supplier) separately from all other products of the Customer or any third party in such a way that they remain readily identifiable as the Supplier's property;
5.3.3. not destroy, deface or obscure any identifying mark or packaging on, or relating to the Products and or the Cups;
5.3.4. maintain the Products and the Cups in satisfactory condition and keep them insured on the Supplier's behalf for their full price against all risks to the reasonable satisfaction of the Supplier from the date on which risk passes to the Customer in accordance with clause 5.1 of these Terms of Sale;
5.3.5. hold the proceeds of the insurance referred to in clause 5.3.4 of these Terms of Sale on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
5.3.6. notify the Supplier immediately if it becomes subject to any of the events listed in clauses 7.1.5 to 7.1.10 (inclusive) of the General Terms; and
5.3.7. give the Supplier such information as the Supplier may reasonably require from time to time relating to (i) the Products and Cups; and (ii) the ongoing financial position of the Customer.
5.4. The Customer may resell the Products and the Cups before title has passed to it solely on the following conditions:
5.4.1. any sale shall be effected in the ordinary course of the Customer's business at full market value;
5.4.2. any such sale shall be a sale of the Supplier's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale (and not as the Supplier's agent); and
5.4.3. title to the Products and the Cups shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
5.5. The Customer's right to possession of the Products and/or the Cups shall terminate immediately if:
5.5.1. the Customer convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer;
5.5.2. the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the Contract or any other contract between the Supplier and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
5.5.3. the Customer encumbers or in any way charges any of the Products and/or Cups.
5.6. The Supplier shall be entitled to recover payment for the Products and/or the Cups notwithstanding that ownership of any of the Products and or the Cups has not passed from the Supplier.
5.7. The Customer grants the Supplier, its contractors and employees and its Distributor(s) an irrevocable licence at any time to enter any premises where the Products and/or the Cups are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.
6.1. Unless otherwise agreed by the Supplier, the price for the Products and Cups shall be the price set out in the Supplier's website on the date of the Order.
6.2. The Supplier may, by giving notice to the Customer at any time up to three (3) Business Days before delivery, increase the price of the Products or Cups to reflect any increase in the Products and Cups that is due to:
6.2.1. any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes or duties, the Retail Price Index, or increases in labour, materials, ingredients or any other manufacturing, delivery or storage costs);
6.2.2. any request by the Customer to change the delivery date(s), quantities or types of Products and Cups ordered; or
6.2.3. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7. Limitation of Liability: The Customer's attention is particularly drawn to this clause
7.1. Subject to clauses 6.2, 6.3 and 6.4 of the General Terms, the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the supply of the Products and/or Cups shall be limited to 100% of the total charges paid for Cups and/or Products under the applicable Order.
8. Claims, Returns, Cancellations, And Refunds
8.1. The Supplier accepts no liability for loss or damage to the Products and/or the Cups unless:
8.1.1. the Products and/or the Cups are examined immediately upon receipt;
8.1.2. the Customer notifies the Supplier within three (3) Business Days of receipt of shipment of any claim for short delivery or damage to the Products and or the Cups; and
8.1.3. the relevant delivery document is endorsed with details of any loss or damage.
8.2. Subject to clause 8.1 of these Terms of Sale, the Customer is entitled to a refund, replacement or credit note for any Products or Cups that arrive damaged or leaking, or wrongly delivered.
8.3. If the Customer has incorrectly ordered any items, the Customer may be eligible to receive replacement items or cancel the order for the items. In such circumstances, the Customer shall be liable for the cost of redelivery. If such a replacement or cancellation is approved by the Supplier, a processing charge of 20% of the item value or £25 (whichever is less) may apply.
8.4. Before the Customer requests a replacement, a refund or credit note, or cancellation, the Customer shall contact the Supplier using the relevant details on the Supplier's help centre(https://gbejslush.zendesk.com/hc/en-us) who will investigate the Customer's issues and advise whether the Product or Cups may be replaced, refunded or a credit note issued, or the order for the item cancelled. If approved, the Customer will be provided with instructions on how to proceed. If the item purchased isn't replaceable, refundable, or the order for the item cancelled, the Customer will be notified by the Supplier.
8.5. Refunds will be issued using the payment method used for purchase.
8.6. Credit notes or replacements will be issued to the account used to purchase the Products or Cups.
8.7. Where applicable, any replacements, refunds or credit note will be made after deductions for the cost of any processing charge.
8.8. The Supplier shall use its reasonable endeavours to process replacements, refunds and credit notes within ten (10) Business Days of receipt.
8.9. Any refund or credit note will be issued in the same currency as the payment for the items was made.
8.10. The Products are food products and the Cups are used to sell or serve the RDP and the Supplier does not accept returns of the Products or Cups
Last updated - 2023.02.01