Terms & Conditions
THE CUSTOMER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSE 8. & 9.
1.1 Definitions. In these Conditions, the following definitions apply:
Act of Insolvency:
(a) the taking of any step in connection with any voluntary arrangement or any other compromise or arrangement for the benefit of any creditors of the Customer; or
(b) the making of an application for an administration order or the making of an administration order in relation to the Customer; or
(c) the giving of any notice of intention to appoint an administrator, or the filing at court of the prescribed documents in connection with the appointment of an administrator, or the appointment of an administrator, in any case in relation to the Customer; or
(d) the appointment of a receiver or manager or an administrative receiver in relation to any property or income of the Customer; or
(e) the commencement of a voluntary winding-up in respect of the Customer, except a winding-up for the purpose of amalgamation or reconstruction of a solvent company in respect of which a statutory declaration of solvency has been filed with the Registrar of Companies; or
(f) the making of a petition for a winding-up order or a winding-up order in respect of the Customer; or
(g) the striking-off of the Customer from the Register of Companies or the making of an application for the Customer to be struck-off; or
(h) the Customer otherwise ceasing to exist; or
(i) the presentation of a petition for a bankruptcy order or the making of a bankruptcy order against the Customer.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh and/or London are open for business.
Subcold: Subcold Limited (company number SC488649), as the case may be.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between Subcold and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Credit Facility: a credit facility granted to the Customer in writing by Subcold for the purposes of ordering goods.
Customer: the person or firm who purchases the Goods from Subcold.
Consumer: An end user using the item for non commercial use in a residential address.
Goods: the goods (or any part of them) set out in the Order.
Identification: a form of identification being a passport, a photocard driving licence bearing a holographic mark, or other form of identification bearing the holder’s photograph, date of birth and the Proof of Age Standards Scheme hologram (or the mark of a similarly accredited scheme).
Order: the Customer’s order for the Goods.
“Working Days” means a day (other than a Saturday or Sunday) on which clearing banks are open for business in Edinburgh and/or London.
2.Basis of Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when:
(a) in the case of the Order being placed over the telephone, when a Subcold representative confirms completion of the Order;
(b) in the case of the Order being placed via Subcold’s website, when the order confirmation screen is displayed;
(c) when the Goods are dispatched, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Subcold which is not set out in the Contract (with the exception of any warranty given by Subcold in accordance with and subject to clause 9)
2.5 Any samples, drawings, descriptive matter, or advertising produced by Subcold and any descriptions or illustrations contained in Subcold’s catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
3.Delivery and Installation
3.1 Subcold shall deliver the goods to the address specified by the Customer at the time the order is placed, or such other place as may be agreed between the parties prior to delivery (Delivery Location).
3.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3.3 The Customer shall be required to provide a signature to Subcold’s nominated courier at the time of delivery. Subject to clause 3.4, by signing for the Goods, the Customer is deemed to accept the quality, state and condition of the Goods at the time of delivery.
3.4 In the event that Goods are not inspected at the time of delivery, the Customer must inform Subcold of any damage or patent defect relating to the Goods within 24 hours of completion of delivery.
3.5 Any part of this Contract which relates to the time or rate of delivery, erection or installation of any of the Goods shall constitute an estimate only and shall not be constructed as constituting a binding obligation on Subcold or a warranty or guarantee by Subcold of any kind. Time is not of the essence in respect of any such estimate. [Subcold shall, however, use its reasonable endeavours to deliver the Goods in accordance with any such estimate.]
3.6 Subcold 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 Subcold with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.7 If the Customer fails to take delivery of the Goods, except where such failure or delay is caused by a Force Majeure Event or Subcold’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the next Business Day after the day on which Subcold’s nominated courier attempted to deliver the Goods;
(b) Subcold shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance); and
(c) the Customer shall be liable for any costs and expenses incurred in respect of further attempts to complete physical delivery of the Goods.
3.8 It shall be the Customer’s responsibility to ensure that all necessary delivery instructions and delivery limitations have been resolved before Subcold’s nominated courier attempted to deliver the Goods. In the event that such limitations are incomplete such that a return visit by Subcold’s nominated courier is required to complete delivery of the Goods, Subcold reserves the right to charge a fee of £20 plus VAT for the administration and new delivery costs.
4.Title and risk
4.1 The risk in the Goods shall pass to the Customer on completion of delivery.
4.2 Title to the Goods shall pass to the Customer when Subcold receives payment in full (in cash or cleared funds) for the Goods, and any other goods that Subcold has supplied to the Customer.
4.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) not remove, deface or obscure any identifying mark on or relating to the Goods;
(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(c) notify Subcold immediately if it becomes subject to an Act of Insolvency; and
(d) give Subcold such information relating to the Goods as Subcold may require from time to time.
4.4 If before title to the Goods passes to the Customer the Customer becomes subject to an Act of Insolvency, then, without limiting any other right or remedy Subcold may have:
(a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) Subcold may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5.Price and Payment
5.1 The price of the Goods shall be the price:
(a) as set out in Subcold’s published price list in force as at the date of order; or
(b) as otherwise agreed by Subcold.
5.2 Subcold may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Subcold’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Subcold adequate or accurate information or instructions.
5.3 Unless otherwise confirmed in writing by Subcold or purchased from the Subcold website, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods.
5.4 Except where otherwise stated, or purchased from the Subcold website, the price of the Goods is exclusive of amounts in respect of value added tax (VAT).
5.5 Where the Customer purchases Goods using a Credit Facility:
(a) Subcold may invoice the Customer for the Goods on or at any time after the completion of delivery; and
(b) the Customer shall pay the invoice in full and in cleared funds within 14 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Subcold. Time of payment is of the essence.
5.6 In the event that the Customer fails to pay an invoice by the due date, Subcold shall be entitled to interest at the rate of 3% above the base rate of the Bank of England, accruing daily from the date following the due date for payment until the date on which the invoice is paid in full.
5.7 In the event that a cheque payment is not honoured by the Customer’s bank, Subcold reserves the right to charge a fee of £25.00.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Subcold may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Subcold to the Customer.
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7.Cancellation, Termination and Suspension (Business Customers)
7.1 If the Customer cancels the Order, Subcold reserves the right to charge a cancellation fee in a sum equal to 25% of the total value of the Order to cover the costs of transportation, administration, testing and repackaging.
7.2 If the Customer becomes subject to an Act of Insolvency Subcold may terminate the Contract with immediate effect by giving written notice to the Customer.
7.3 Without limiting its other rights or remedies, Subcold may suspend provision of the Goods under the Contract or any other contract between the Customer and Subcold if the Customer becomes subject to an Act of Insolvency, or Subcold reasonably believes that the Customer is about to become subject to an Act of Insolvency, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
7.4 On termination of the Contract for any reason the Customer shall immediately pay to Subcold all of Subcold’s outstanding unpaid invoices and interest.
7.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
7.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8.Limitation of Liability
8.1 Nothing in these Conditions shall limit or exclude Subcold’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer rights act 2015.
8.2 Subject to clause 8.1:
(a) Subcold shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Subcold’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
8.3 The terms implied by section 13 to section 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.1 No warranty is given by Subcold in respect of the Goods unless otherwise agreed by Subcold.
9.2 Any warranty given by Subcold shall be subject to the following conditions:
(a) the Goods must be used under normal operating conditions and according to the instructions as indicated within the product manual provided by Subcold;
(b) routine servicing or repair of the Goods must be undertaken by an appropriately qualified engineer;
(c) Goods manufactured for personal use must not be used for commercial or industrial purposes;
(d) the Customer must retain proof of purchase in the event that the Goods need to be returned.
9.3 Any warranty given by Subcold shall be invalidated in the following circumstances:
(a) failure by the Customer to maintain, locate or install the Goods in accordance with Subcold’s recommendations;
(b) neglect, misuse or modification of the Goods in any manner whatsoever by the Customer;
(c) replacement of any parts or components of the Goods with those of a type not specified by Subcold;
(d) failure by the Customer (Business) to comply with Subcold’s instructions in relation to the Waste Electrical and Electronics Equipment Directive (2002/96/EC) as amended from time to time.
9.4 Any warranty given by Subcold shall not extend to matters and/or parts which are beyond the control of Subcold, including (but not limited to):
(a) electrical cabling between the Goods and the mains electricity supply;
(b) light bulbs, light tubes and LED lights;
(c) vandalism/physical damage to the Goods or parts thereof;
(d) rusting of the Goods;
(g) power failures.
9.5 In the event that an an item needs to come back to Subcold for inspecting the Goods for a potential claim under a warranty, Subcold reserves the right to charge a fee to the Customer in certain circumstances, including (but not limited to):
(a) no fault being found with the Goods;
(b) general misuse/incorrect siting of the Goods;
(c) failure to follow Subcold’s user guidelines and maintenance in accordance with Subcold’s recommendations;
(d) replacement of light bulbs, light tubes and LED lights;
(e) cleaning so a repair or inspection can take place;
(f) incorrect power sourcing;
(g) modification to or repairs of the Goods being undertaken by anyone other than an appropriately qualified engineer;
(h) damage to the Goods resulting from accident, misuse or neglect; o.
(i) the Customer moving or relocating the Goods;
(j) incorrect reason for return used to gain a free return.
9.6 Any warranty given by Subcold shall be personal to the Customer and the Customer shall not be entitled to assign or transfer the rights under such warranty without the prior written approval of Subcold.
The terms of this clause shall apply solely to a Customer who is a consumer (Consumer)
10.1 Right to cancel
(a) Under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134), a Consumer is entitled to cancel an order placed via Subcold’s website or an order concluded by telephone within 14 days following the date on which the Consumer takes delivery of the Goods in accordance with clause 3.
(b) You must first give written notice to Subcold via email to advise them you are exercising your right to cancel.
(c) Any Goods returned in accordance with this clause must be returned in an unused state and in their original packaging.
10.2 The statutory implied terms excluded by clause 8.3 above shall not be excluded from any contract made between Subcold and a Consumer.
10.3 Clause 7.1 shall not apply to Consumers exercising their right to cancel under clause 10.1.
11.UK WEEE Regulations
As part of the WEEE Regulations, Subcold passes on the responsibility for all Goods sold to B2B customers when they reach end-of-life. The end user must deal with the WEEE in accordance with the WEEE Regulations in relation to the treatment, recycling & recovery and environmentally sound disposal of WEEE. For domestic customers, Subcold are fully compliant to the WEEE regulations as set out by the Environment Agency and our registration number is WEE/JG1885ST.
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 result from events, circumstances or causes beyond its reasonable control, including (without limitation) acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13.1 Assignment and other dealings
(a) Subcold may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Subcold.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or to a Consumer’s residential address or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e- mail, one Business Day after transmission.
(c)The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Subcold.
13.7 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
13.8 Jurisdiction. Each party irrevocably agrees that, subject as provided below, the courts of Scotland shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). Nothing in this clause shall limit the right of a non-UK Customer to take proceedings against Subcold in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.