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Terms & Conditions

Terms & Conditions

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.

 

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