UNITED SCOTTISH WHOLESALE PROMOTION
SUBSCRIPTION AGREEMENT FOR THE SUPPLY OF HAND SANITISER
Business Day - a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date - the date the Contract commences, as set out in the Order Form.
Conditions - these terms and conditions set out in clause 1 to clause 11 (inclusive).
Contract - the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with the Order Form and these Conditions.
Customer Portal - a secure webpage, to which the Supplier may grant the Customer access for the purposes of managing its account with the Supplier for the delivery of the Goods.
Shipping Address - the address for delivery of the Goods, as set out in the Order Form.
Force Majeure Event - events, circumstances or causes beyond a party's reasonable control.
Goods - the goods (or any part of them), as set out in the Order Form.
Order Form - an order form setting out details of the Customer’s subscription and payment details.
Price - the price for the Goods, as set out in the Order Form.
VAT - value added tax chargeable in the UK.
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.2.2 any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and term of the promotion
2.1. You have been invited by United Wholesale (Scotland) Limited (USW) to take
advantage of an opportunity to receive one complimentary hand sanitiser dispenser
(a Dispenser), together with preferential rates on the supply of bottles of hand
sanitiser (the Promotion).
2.2. This Contract shall commence on the Commencement Date and shall continue,
unless terminated earlier in accordance with its terms, until expiry of the Initial
Subscription Term (as specified in the Order Form), when it shall automatically
renew for successive periods of 1 month (each a Renewal Period) unless the
Customer gives no less than 1 month’s notice in writing to terminate the Contract at
the end of the then current Renewal Period.
3.1. Subject to clause 3.4, during the Initial Subscription Term and each Renewal Period (together the Term), the Supplier shall deliver the specified quantity of the Goods at the subscription frequency specified in the Order Form.
3.2. Subject to clause 3.3, the Customer may request a change to the frequency of deliveries or the quantity of Goods to be delivered at any time during the Term.
3.3. The Customer acknowledges that the Prices applicable to the Goods are calculated by reference to the length of the Initial Term selected by the Customer, the quantity of Goods to be delivered during the Term and the frequency of deliveries selected by the Customer in entry into the Contract. As a result, the Customer agrees that in the event that it:
3.3.1. gives notice to cancel the Contract or the Supplier gives notice to cancel the Contract pursuant to clause 10 prior to expiry of the Initial Term; or
3.3.2 requests a change to the quantity of Goods to be delivered or, the frequency of deliveries of Goods pursuant to clause 3.2
and, as a result the Customer has received (or would receive) a lower quantity of Goods than it selected to receive had the Contract not been terminated prior to expiry of the Initial Term or the Customer had not requested such change, the Supplier shall be entitled to charge any shortfall in the aggregate Price that it has received (or would be entitled to receive had the Contract not been terminated) including but not limited to the cost price of each dispenser supplied free of charge as part of the promotion to which the Contract relates to the Customer using the debit/credit card details supplied by the Customer in the Order Form and the Customer authorises it so to do.
3.4. Deliveries of the Goods are made in cases with minimum quantities of 4 x 5 litre bottles per case, such that where a Customer elects to receive 2 x 5 litre bottles per month, that requirement will be fulfilled by bi-monthly deliveries of a case of 4 x 5 litre bottles.
4. The Goods
4.1. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained on the Supplier's websites, or in its catalogues or brochures 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.
4.2. The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
5.1.The Supplier shall deliver the selected quantity of Goods to the Shipping Address in accordance with the subscription frequency specified in the Order Form.
5.2. Delivery is completed on the completion of unloading of the Goods at the Shipping Address.
5.3. Dates for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of any Goods that is caused by:
5.3.1. a Force Majeure Event; or
5.3.2. 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.
5.4. The Price includes the cost of packaging and delivery of the Goods which shall be borne by the Supplier.
Quality and fitness for purpose
6.1. The Supplier warrants that the Goods shall:
6.1.1. conform in all material respects with their description;
6.1.2. be free from material defects in design, material and workmanship;
6.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4. be fit for any purpose held out by the Supplier.
6.2. Subject to clause 6.3, if:
6.2.1. the Customer gives notice in writing to the Supplier within 10 Business Days of discovery that some or all of the Goods do not comply with the warranties set out in clause 6.1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.2.3. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost,
the Supplier shall replace any Goods that are found to be defective, or refund the price of such defective Goods in full.
6.3. The Supplier shall not be liable for the Goods' failure to comply with the warranties set out in clause 6.1 if:
6.3.1. the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 6.2;
6.3.2. the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
6.3.3. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.4 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4. The Supplier's only liability to the Customer if the Goods fail to comply with the warranties set out in clause 6.1 is as set out in this clause 6.
6.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6. The terms of the Contract shall apply to any replacement Goods supplied by the Supplier.
7. Title and risk
7.1. Risk in Goods shall pass to the Customer on completion of unloading the Goods at the Shipping Address.
7.2. Title to Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
7.3. Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
7.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3. maintain the Goods in satisfactory condition;
7.3.4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1.2; and
7.3.5. give the Supplier such information as the Supplier may reasonably require from time to time relating to:
126.96.36.199. the Goods; and
188.8.131.52. the ongoing financial position of the Customer.
7.4. The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 7.3, and to recover any Goods in which property has not passed to the Customer.
7.5. The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.
8. Price and payment
8.1. The Supplier shall be entitled to automatically charge the Customer (by way of charging the Customer’s debit or credit card or setting up a standing order with the Customer’s bank using the details provided in the Order Form) for any Goods delivered to the Customer in accordance with this clause 8.
8.2. The Customer undertakes to maintain valid debit/credit card details throughout the Term and update them as required within 5 Business Days of any change and shall indemnify and keep the Supplier indemnified in respect of all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs) suffered or incurred by the Buyer arising out of a failure by the Customer to so maintain such details.
8.3 The Price excludes amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable)
8.4. If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 10:
8.4.1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.4.2. the Supplier may suspend all further deliveries of Goods until payment has been made in full.
8.5. All amounts due under this Agreement from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.
8.6. The Promotion is strictly subject to availability and to you being eligible to benefit
from the Promotion and to receive the Goods at the preferential rates. If we are
unable to supply you with the Goods for any reason, we will inform you of this by
email and we will not process your Order. We will refund to you any amounts
received from you as soon as possible.
8.7. If we mistakenly accept and process your Order where it transpires that you were
not eligible to benefit from the Promotion, we may cancel the supply of the Goods and will inform you of this by email. You will be liable to return any Goods delivered
to you upon request from us.
9. Limitation of liability
9.1. Nothing in this Contract shall limit or exclude the Supplier's liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4. defective products under the Consumer Protection Act 1987; or
9.1.5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2. Subject to clause 9.1:
9.2.1. the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2. the Supplier's total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the total sums paid by the Customer for Goods under the Contract in the 12 month period preceding such liability arising.
10.1. Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
10.1.1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
10.1.2. the other party 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;
10.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
10.1.4. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
10.2. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
10.3. Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including:
10.3.1. the right to charge any shortfall to the Customer in accordance with clause 3.3; or
10.3.2. the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.
10.4. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11.1. Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 13 weeks, the party not affected may terminate this Contract by giving 30 days’ written notice to the affected party.
11.2. Assignment and other dealings.
11.2.1. The Customer shall not assign, transfer, 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.
11.2.2. The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
11.3.1. Each party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party.
11.3.2 Each party may disclose the other party's confidential information:
184.108.40.206. to its employees, officers, representatives 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 Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
220.127.116.11. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3.3. No party shall use any 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.
11.4. Entire agreement.
11.4.1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
11.5. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6. 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.
11.7. Severance. 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.
11.8.1. The Customer may make changes to the Order Form, such as the quantity or frequency of deliveries of the Goods or vary the Initial Term, or give notice of changes to its credit/debit card details by updating such information on the Customer Portal or by giving notice in accordance with the remaining provisions of this clause 11.8.
11.8.2. Any other 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 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, or sent by pre-paid first class post or other next working day delivery service or commercial courier.
11.8.3. A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in clause 11.8.2; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
11.8.4. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.9. Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
11.10. Governing law. This 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.
11.11. 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 this Contract or its subject matter or formation.