Frozen Brothers Ireland Terms and Conditions of Sale and use of Equipment.
These are the terms and conditions on which Frozen Brothers Ireland will supply goods and services (the General Terms). In addition to the General Terms: the Equipment Hire Terms at Annex 1 apply if you hire Equipment from the Supplier; the Terms of Use at Annex 2 apply in respect of your use of any Equipment and the supply of any Services; Terms of Sale at Annex 3 apply to any Cups or Products you purchase; and the Scope of Services at Annex 4 apply in respect of the services provided by the Supplier. 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, CLAUSE 2 AND CLAUSE 5 AND CLAUSE 6 OF THE EQUIPMENT HIRE TERMS, CLAUSE 6 OF THE TERMS OF USE 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. ‘Call out Charge’ means a fee that may be charged by the Supplier to cover the cost of travel and time to respond to or fulfill an Order for Services.
1.4. 'Contract' means the contract between the Supplier and the Customer for the hire of the Equipment, the supply of Products and Cups or the supply of the Services (as applicable) in accordance with these Conditions.
1.5. 'Customer' means the entity identified as the customer in the applicable order form.
1.6. '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.
1.7. 'Data Protection Laws' means all laws (whether of Ireland 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, the Privacy and Electronic Communications Directive 2002/58/EC, and the Data Protection Acts 1998 - 2018.
1.8. 'Delivery Date' means the date on which the Equipment is delivered to the Installation Location.
1.9. 'Delivery Location' means the address identified as the Delivery Location in the applicable Order.
1.10. 'Distributor' means a business / company appointed by the Supplier to sell or distribute to the Customer the Products and Cups for use with the Equipment (including wholesalers and central distribution centres).
1.11. 'Electronic Signature' means data in electronic form which is attached to or logically associated with other data in electronic form, and which is used by the signatory to sign.
1.12. 'Equipment' means each power unit for the dispensing of the RDP (including its dispensing equipment and any video screen or display monitor and any ancillary equipment or any additions or accessories), used for the exclusive purpose of dispensing the RDP and, where the Supplier hires the Equipment to the Customer, the equipment will be particularised in the relevant order form.
1.13. ‘Equipment Checks’ means information the Supplier may ask the Customer to supply, or actions the Supplier may ask the Customer to take or confirm, in order to identify a potential Equipment Fault or Equipment Issue.
1.14. ‘Equipment Fault’ means an event with the Equipment that requires the Supplier to provide the Services.
1.15. ‘Equipment Issue’ means an event with the Equipment which can be addressed or rectified by the Customer. The Customer, at their discretion, may place an order with the Supplier to provide the Services to address or rectify an Equipment Issue.
1.16. 'Equipment Hire Terms' means the terms and conditions at Annex 1.
1.17. 'Food Hazard Risk' means an incident where the Customer believes any of the Product or RDP may be dangerous and should be recalled.
1.18. ‘Free on Loan Basis’ means an agreement between the Supplier and the Customer for the Equipment, without any hire charges being due to the Supplier.
1.19. ‘Frozen Brothers IPR’ means all Intellectual Property Rights owned or used or registered by Frozen Brothers including but not limited to those in respect of the “Fanta Frozen”, “Coca-Cola Frozen”, “Tango Ice Blast”, “Robinsons Fruit Ice”, "Slushy Jacks” products and equipment and its rights in “Frozen Brothers”, “Fanta Frozen”, “Coca-Cola Frozen”, “Tango Ice Blast”, “Robinsons Fruit Ice”, "Slushy Jacks”, “IceScreen”, “IceStation”; and patents, rights in inventions, know-how, registered and unregistered trade marks and service marks (including any trade, brand or business names and any distinctive colours, smells or sounds used to differentiate the goods and services of Frozen Brothers), domain names, registered designs, design rights, utility models, copyright (including all such rights in computer software, Equipment software or components, field service software and any databases), moral rights, topography rights and rights in confidential information (in each case for the full period thereof and all extensions and renewals thereof), applications for registration of any of the foregoing and the right to apply for any of the foregoing in each case in any part of the world and any similar rights in any part of the world.
1.20. ‘Help Centre’ means the website containing instructions in respect of the cleaning, maintenance and operation of the Equipment and which can be found at https://frozen-store.zendesk.com/hc/en-us
1.21. ‘IceScreen’ means an integrated video screen or display monitor to play promotional content or brand advertising, and comprising proprietary software to provide real-time monitoring and reporting of equipment performance.
1.22. ‘IceStation’ means a proprietary install solution integrating the power unit and its dispensing equipment and any video screen or display monitor with any ancillary equipment or any additions or accessories and any utilities.
1.23 ‘Information Icon’ means a warning light displayed on the Equipment, or an icon or symbol or status message displayed on the IceScreen, details of which the Supplier will send to the Customer on request.
1.24. 'Installation Location' means the site at which the Equipment will be installed by the Supplier and used by the Customer, as specified in the Order.
1.25. 'Major Fault' means an Equipment fault when the site cannot dispense RDP.
1.26. 'Minor Fault' means an Equipment fault which requires a minor or cosmetic repair, but the site can dispense RDP while waiting for the repair to be made.
1.27. 'Operating Manual' means a manual containing instructions in respect of the cleaning, maintenance and operation of the Equipment, details of which the Supplier will send to the Customer on request.
1.28. 'Order' means the Customer's order for the hire of the Equipment, the supply of Products and Cups or the supply of the Services (as applicable), as set out in the purchase order form or the Customer's request by email, online or over the phone.
1.29. 'Owner' means the company identified as the Equipment Owner, its successors or assigns and or its contractors, employees, affiliates, appointees, or suppliers on any contract or order for the hire of the Equipment.
1.30. 'Products' means the drinks (including premix syrups) for use in the Equipment made or supplied by the Supplier, details of which the Supplier will send to the Customer on request.
1.31. 'Ready to Drink Product' or 'RDP' means the Product diluted with potable water and dispensed from the power unit as a fine slush of suspended ice crystals with liquid, in accordance with the Operating Manual or Help Centre or You Fix Self-Help Video Channel and any other instructions issued by the Supplier from time to time.
1.32. 'Rental Payment' is the sum specified in the Equipment Rental Invoice (applicable only where the Equipment owner is the Supplier).
1.33. 'Rental Period' has the meaning set out in clause 1.2 of the Equipment Hire Terms (applicable only where the Equipment owner is the Supplier).
1.34. ‘Scope of Services' means the terms and conditions at Annex 4.
1.35 ‘Service Booking’ means a scheduled date for a service or install technician to attend the Site to perform the Services.
1.36. ‘Services' means the services provided by the Supplier to deliver, install, remove, replace and/or repair the Equipment (as applicable) and maintain the Equipment in working condition, solely to the extent set out in Annex 4. 'Services' shall not include repair and maintenance work on the Equipment which is either not included in the scope of Annex 4, or which is expressly stated to be the responsibility of the Customer.
1.37. ‘Site’ means the location at which the Equipment is installed by the Supplier.
1.38. 'Supplier’ means Frozen Brothers Ireland (registration number 684784), whose registered office is FBSI Ltd, 77 Merrion Square, S. Dublin, D02 DH22, Ireland. References to the Supplier include its successors or assigns, and any other company in the Frozen Brothers Limited group of companies.
1.39. 'Terms of Sale' means the terms and conditions at Annex 3.
1.40. 'Terms of Use' means the terms and conditions at Annex 2.
1.41. '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.
1.42. ‘Units of Products’ means the amount of the Products required to make 300 ml of RDP.
1.43. ‘Uptime’ is the ability of a site to dispense Ready to Drink Product whenever all utilities, including electrical power and potable water, are available to the Equipment.
1.44. ‘We Fix’ means an Equipment Fault which is the responsibility of the Supplier.
1.45. ‘You Fix’ means an Equipment Issue which is the responsibility of the Customer.
1.46. ‘You Fix Self-Help Video Channel’ means the website containing instructions in respect of Equipment Issues and the cleaning, maintenance and operation of the Equipment and which can be found at https://www.youtube.com/@FrozenBrothersYouFix
1.47. 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".
1.48. 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.
1.49 A reference to writing or written includes email.
1.50. 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 hiring of any Equipment and any supply of Products, Cups and Services by the Supplier to the Customer.
2.2. In addition to the General Terms:
2.2.1. the Equipment Hire Terms shall apply if the Customer hires the Equipment from the Supplier;
2.2.2. the Terms of Sale shall apply to any Products and Cups purchased by the Customer from the Supplier; and
2.2.3. the Terms of Use shall apply in respect of the use of any Equipment and the supply of any Services (regardless of whether such Equipment is supplied by the Supplier or any finance company).
2.3. The General Terms, Equipment Hire Terms, Terms of Sale and Terms of Use together (as applicable) being the "Conditions".
2.4. Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.5. The Order constitutes an offer by the Customer to hire the Equipment and/or purchase the Products, Cups and/or Services (as applicable) in accordance with the Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.6. The Order shall only be deemed to be accepted when the Supplier issues written confirmation or written acceptance of the Order at which point and on which date the Contract shall come into existence.
3. Products, Cups and/or Equipment and Services
3.1. Any dates specified by the Supplier for dispatch, delivery or supply of the Products, Cups, Equipment and/or performance of the Services 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, Cups, Services and/or Equipment.
4. Payments
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. Where the Customer and the Supplier have entered into a credit account agreement, it is an essential condition of the Contract that the Supplier receives all payments on their due dates without previous demand.
4.3. Payments for the Equipment, Products, Cups and/or Services shall be due:
4.3.1. if it is agreed that the Customer will make one payment, at the time of placing the order (unless otherwise agreed by the Supplier in writing); or
4.3.2. if it is agreed that the Customer will pay in intervals, at the intervals specified in the order form or the invoice provided by the Supplier with the first payment becoming due at the time of placing the order (unless otherwise agreed by the Supplier in writing). Where the parties have agreed that the Customer shall make payments at specified intervals:
4.3.2.1. 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 and on the intervals outlined in the applicable order form; and
4.3.2.2. and the date for payment of any sum under the Contract is not a Business Day, the payment will be taken on the next Business Day. If there is no corresponding date in the month, the payment will be taken on the last Business Day before that date.
4.4. No payment shall be deemed to have been received until the Supplier has received cleared funds.
4.5. 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.
4.6. If the Customer fails to pay the Supplier any sum due pursuant to the Contract, 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 a rate of 8% above the then current base lending rate of the European Central Bank (ECB), but at 8% a year for any period when that base rate is below 0%.
4.7. Notwithstanding clause 4.6 of these General Terms, if the Customer fails to pay the Supplier any sum due pursuant to the Contract, the Supplier also reserves the right to charge a minimum of €25 for each cheque unpaid by the Customer's bank and a minimum of €25 for each cheque which is returned marked "Please Represent".
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 Equipment, 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 Equipment, 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, clause 5 of the Terms of Use and clause 7 of the Equipment Hire terms (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 1893 (title and quiet possession) or section 10 of the Sale of Goods and Supply of Services Act 1980 (title and quiet possession).
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, Cups and/or the Equipment 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. Termination
7.1. Without affecting any other right or remedy available to it, the Supplier may at its sole discretion and, for any reason whatsoever, give the Customer seven (7) days' written notice, at any time, to terminate the Contract.
7.2. Without limiting its other rights or remedies, the Supplier may give written notice to the Customer terminating the Contract with immediate effect if:
7.2.1. the Customer fails to pay any sum payable under the Contract within three days of it becoming due and fails to remedy the same within fourteen (14) days of notice being provided to the Customer requiring the breach to be remedied;
7.2.2. 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;
7.2.3. 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;
7.2.4. 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.
7.2.5. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
7.2.6. 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;
7.2.7. there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001);
7.2.8. the Customer purports to assign its rights or obligations under the Contract;
7.2.9. the Customer defaults under any other agreement with the Supplier; and/or
7.2.10. the Customer has given any information which, in the reasonable belief of the Supplier, is inaccurate or untrue in connection with the Contract.
7.3. Without limiting its other rights or remedies, the Customer may terminate this Contract:
7.3.1. 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;
7.3.2. 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;
7.3.3. 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 7.3.2 of these General Terms; or
7.3.4. 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 (together with any interest due under clause 4.6 of these General Terms) and, in respect of Equipment, Services, 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 Equipment, Products and/or Cups with the Supplier's consent;
8.1.3. (where the Equipment has been hired from the Supplier, or where the Customer's right to possession has terminated) grant the Supplier, its contractors and employees and its Distributor(s) an irrevocable licence at any time to enter the Installation Location or any premises where the Equipment is being stored or used and retrieve the Equipment (which shall be in the same condition as it was in on the Delivery Date, save for fair wear and tear) including any Frozen Brothers IPR associated with the Equipment. Following termination of the Contract and prior to the Supplier retrieving the Equipment in accordance with this clause 8.1.3, the Customer shall not: (a) make any attempt to move or dispose of the Equipment at any time (without the prior written consent of the Supplier); nor (b) do anything (nor allow anything to be done) which could (in the reasonable opinion of the Supplier) affect the working order or condition of the Equipment. The Customer shall reimburse the Supplier for any costs the Supplier incurs in retrieving the Equipment and/or repairing the Equipment so that it is in the same condition as it was in on the Delivery Date (save for fair wear and tear); and
8.1.4. the Customer shall reimburse the Supplier for any costs the Supplier incurs in retrieving the Equipment and/or repairing the Equipment so that it is in the same condition as it was in on the Delivery Date (save for fair wear and tear);
8.1.5. return or dispose (at the Supplier's election) and make no further use of any Products and/or Cups which have not been used during the term of the Contract.
8.2. Without prejudice to clause 8.1.3, in the event that the Customer has failed (a) to permit the Supplier from entering the Installation Location or any premises where the Equipment is being stored or used; and/or (b) to enable the Supplier to retrieve the Equipment (including, failing to make the Equipment available to the Supplier for the Supplier's retrieval for any reasons, including as a result of the Customer moving or disposing of the Equipment without the prior written consent of the Supplier or threatening to move or dispose of such Equipment);
8.2.1. the Supplier shall (at its election) be entitled but not obliged to raise and send to the Customer (and the Customer agrees to pay) an invoice of sale in respect of the Equipment for: (i) the value of the Equipment based upon the Supplier's valuation (acting reasonably, and such valuation to exclude any depreciation caused by damage to the Equipment save for fair wear and tear); and (ii) any and all costs incurred by the Supplier in de-branding or removing and retrieving all Frozen Brothers IPR from the Equipment;
8.2.2. upon an invoice of sale being raised by the Supplier and sent to the Customer under clause 8.2.1 of these General Terms: (i) ownership and title of the Equipment shall automatically transfer to the Customer and this shall be stated clearly on the invoice of sale; and (ii) the Customer shall pay the invoice of sale in accordance with clause 4 of the General Terms, Payments, within the time period specified on the invoice of sale, and shall comply with any conditions of sale including (without limitation) conditions around de-branding or removing and retrieving all Frozen Brothers IPR from the Equipment;
8.2.3. at any time before the Customer has paid, and the Supplier has received cleared payment in respect of, any invoice of sale raised under this clause 8.2, the Supplier shall be entitled to cancel or credit the invoice of sale by informing the Customer in writing (including by email), upon which ownership and title of the Equipment shall be automatically transferred to the Supplier free from any encumbrances (and this shall be stated clearly in any written communication and on any credit note).
8.3 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.
8.4. The Customer acknowledges that the Supplier shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment 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; (iii) unable to provide the necessary Services for more than 180 days (subject to the Customer providing access to the Location in order for the Supplier to provide such Services on the Supplier's request); or (iv) unable to procure the delivery of any Equipment 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
11.1. The Supplier will only use personal information as set out in its Privacy Policy (at https://www.frozenbrothers.ie/privacy-cookies-policy).
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 Equipment, Products, Cups or Services. Such changes will not affect the Customer's overall use of the Equipment, Products, Cups or Services.
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 of these general Terms, 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. Unless otherwise stated, notices to the Supplier should be sent to the relevant email address on the Supplier's website (at www.frozenbrothers.ie/contact). 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 email).
13. General
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 Employment Equality Acts 1998 – 2015, protect 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. Assignment.
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 Ireland.
13.11. Jurisdiction. Each party irrevocably agrees that the courts of Ireland 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: EQUIPMENT HIRE TERMS (applicable where the Equipment has been hired from the Supplier)
1. Equipment Hire
1.1. The Customer shall hire the Equipment from the Supplier for use only at the Installation Location for the Rental Period subject to the Conditions.
1.2. The Rental Period shall start on the Delivery Date and shall continue for the period of time specified in the Order unless terminated earlier in accordance with the Conditions.
1.3. For the avoidance of doubt, unless otherwise agreed by the Supplier in writing, there shall be no trial period in respect of the Equipment.
2. Obligations of the Customer
2.1. The Customer shall:
2.1.1. allow the Supplier to indicate on the Equipment ownership thereof by whatever means the Supplier deems appropriate;
2.1.2. keep the Equipment in its sole possession, custody or control at the Installation Location (prior to and following installation) and not sell, assign, mortgage, charge or sub-let the Equipment or allow any liens over the Equipment.
2.1.3. pay all taxes and impositions in respect of its hiring and use of the Equipment;
2.1.4. not do or permit to be done anything which could invalidate the insurances referred to in clause 6 of these Equipment Hire Terms; and
2.1.5. not do or permit or cause to be done any matter or thing whereby the Supplier rights in respect of the Equipment are or may be prejudiced
3. Quality of the Equipment
3.1. The Supplier warrants that on delivery, the Equipment shall:
3.1.1. conform with its description;
3.1.2. be free from material defects in design, material and workmanship; and
3.1.3. be of satisfactory quality (within the meaning of the Sale of Goods and Supply of Services Act 1893-1980).
3.2. The Customer acknowledges and agrees that the Equipment it has chosen is fit and suitable for its purposes.
3.3. Unless otherwise stated in the Contract, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded.
4. Payments
4.1. The Customer shall pay the Rental Payment(s) to the Supplier in accordance with clause 4 of the General Terms, without previous demand.
5. Title, Risk and Insurance
5.1. The Equipment shall at all times remain the property of the Supplier, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Equipment Hire Terms).
5.2. All risks in respect of the Equipment (including the risk of loss, theft, damage or destruction of the Equipment) shall pass to the Customer on delivery of the Equipment to the Installation Location in accordance with clause 2.1 or 2.3 (if applicable) of these Equipment Hire Terms. The Equipment shall remain at the sole risk of the Customer until possession of the Equipment is retaken by the Supplier and until such time the Customer will maintain the following insurances:
5.2.1. insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Supplier may from time to time nominate in writing;
5.2.2. insurance for such amounts as a prudent Supplier or operator of the Equipment would insure for, or such amount as the Supplier may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
5.2.3. insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Supplier may from time to time consider reasonably necessary and advise to the Customer in writing.
5.3. The Customer shall arrange to note the Supplier's interest on any policy of insurance as Supplier of the Equipment and payee of any insurance proceeds. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies and all monies payable under such policies shall be payable to the Supplier or to its order and any insurance monies received by the Customer shall be held on trust for the Supplier, and the Customer will if required assign all insurance rights in the Equipment to the Supplier.
5.4. If the Equipment is declared a total loss (other than as a result of a breach of the Contract by the Supplier), the Customer will on demand, pay the Supplier an amount which added to the net proceeds recovered from the insurance equals the full value of the Contract.
5.5. If asked to show evidence of the insurance policy and the Customer does not do so by the date specified the Supplier may, if it chooses, take steps to protect its interests, including arranging insurance for its own benefit. If the Supplier does this, it will make a monthly charge and will notify the Customer of the amount of this charge at the time, and will recover the same as a debt due from the Customer as necessary (including through collecting payment of any such charge via direct debit).
5.6. The Customer must notify the Supplier within one working day of any damage to or loss of the Equipment and if applicable provide the insurer with a true, complete and accurate statement of loss and any other information that the insurer reasonably requires in support of the claim. In the event of a claim, the Customer must make every reasonable effort to protect the Supplier and the Equipment from further loss.
6. Limitation of Liability: The Customer's attention is particularly drawn to this clause
6.1. 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 under or in connection to the Contract shall be limited to:
6.1.1. the cap at clause 5.1.1 of the Terms of Use in respect of any loss arising from damage to physical property caused by the Equipment, save to the extent that such loss or damage has been caused by an act or omission of the Customer; and
6.1.2. subject to the Customer complying with clause 3 of these Equipment Hire Terms and clause 2 of the Terms of Use and save to the extent that such damage to the Equipment has been caused by an act or omission of the Customer:
6.1.2.1. the Supplier repairing (or procuring the repair of) the Equipment in order for it to operated in accordance with the Operating Manual, or Help Centre or You Fix Self-Help Video Channel or where the Equipment is damaged; or
6.1.2.2. the Supplier replacing (or procuring the replacement of) the Equipment, where the Equipment cannot be repaired.
ANNEX 2: TERMS OF USE
1. The Equipment
1.1. The Supplier shall install the Equipment at the Installation Location in accordance with clause 3.1.1 of these Terms of Use. The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Supplier, the Customer's duly authorised representative shall sign a receipt confirming such acceptance.
1.2. If at any time, the Equipment is replaced or substituted by the Supplier:
1.2.1. it shall be with equipment of a similar kind and quality; and
1.2.2. any replacement equipment shall be deemed to be the Equipment for the purposes of the Contract.
2. The Customer's Obligations
2.1. The Customer represents and warrants that the Equipment will be operated and maintained at all times strictly in accordance with the Contract.
2.2. The Customer undertakes and agrees to:
2.2.1. co-operate with the Supplier in all matters relating to the Services and provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, ensuring that such information is complete and accurate in all material respects; and in those instances where special consents, passes or permissions are required to access the Site to fulfill an Order for Services to obtain those special consents, passes or permissions and to include the relevant information in the Order.
2.2.2. take great care of the Equipment at all times (including for the avoidance of doubt, all parts of the Equipment including the filters), keeping it in good repair, condition and working order, carrying out regular cleaning and maintenance and ensuring it is properly operated and maintained strictly in line with the procedures supplied with the Equipment, including the Operating Manual or Help Centre or You Fix Self-Help Video Channel;
2.2.3. provide sufficient Product, potable water, electricity, CO2 (where required), space and access for the normal operation of the Equipment;
2.2.4. ensure the Equipment is operated in line with all applicable planning and health and safety regulations;
2.2.5. keep the exterior of the Equipment clean at all times and to follow the cleaning procedures supplied with the Equipment, including the Operating Manual or Help Centre or You Fix Self-Help Video Channel;
2.2.6. except in the event of an emergency or any issue that may risk damage to the Equipment or Site, or may risk the health or safety of the Site, staff, or customers, keep the Equipment operational at all times and not switch off or disconnect the Equipment without the Supplier's written consent;
2.2.7. not affix any advertising material or any other item from any other source to the exterior of the Equipment, and not change or obscure any aspects of the Trade Marks, logos, images or branding of the Equipment;
2.2.8. not obscure any video screen or display monitor associated with or connected to the Equipment;
2.2.9. notify the Supplier within one (1) Business Day of any Equipment Fault, or breakdown of the Equipment; the Equipment being damaged in any way; or the Equipment becoming the subject of any claim, using such systems and information that the Supplier shall specify to the Customer from time to time, including but not limited to Equipment Checks and reporting the fault as either a Major Fault (cannot dispense RDP) or a Minor Fault (can dispense RDP);
2.2.10. allow the Supplier access to the Equipment to make reasonable inspections and repairs, and permit any delivery or installation or commissioning or moving or decommissioning or removal or replacement of the Equipment during normal Business Hours;
2.2.11. not without the written consent of the Supplier move or permit the moving of the Equipment at or from the Installation Location and the Customer shall pay any expenses incurred by the Supplier in moving such Equipment
2.2.12. make no alteration to the Equipment and not enable it to be tampered with;
2.2.13. ensure the Equipment, when retrieved or collected by the Supplier, is clean of debris, Products, RDP or any foreign matter save for expected fair wear and tear;
2.2.14. only use the Equipment to freeze Products and/or dispense the RDP in accordance with the Conditions and for no other purpose.
2.3. If the Customer is in breach of clauses 2.2.1 – 2.2.14 (inclusive) of these Terms of Use or clause 3 of the Equipment Hire Terms and the Equipment is damaged or is in a poor state of repair or condition, the Supplier may arrange for such work to be carried out as is reasonably necessary to restore the Equipment to a state of good repair and condition. The Customer shall indemnify the Supplier against and pay the Supplier when asked for all costs and expenses the Supplier incurred or will incur in respect of those works.
2.4. The Customer acknowledges and agrees that the Supplier has the exclusive right to publish, transmit, display, distribute, select and/or modify the content, advertising or promotion displayed on any IceScreen, video screen or display monitor associated with or connected to the Equipment without compensation to the Customer.
3. Delivery and Installation
3.1. Subject to clause 3.1 of the General Terms, the Supplier shall deliver (or procure the delivery of) the Equipment to the Installation Location and shall use reasonable endeavours to comply with the time period specified by the Customer.
3.2. To facilitate delivery and installation, the Customer shall at its sole expense provide all requisite Product, power, water, CO2 (where required), facilities, access and suitable working conditions to enable delivery and installation to be carried out safely and expeditiously (including paying any costs necessary in respect of site-specific modifications required for installation).
3.3. If the Customer fails to accept delivery and installation of the Equipment on the Delivery Date, then, except where such failure is caused by the Supplier's failure to comply with its obligations under the Conditions.
3.3.1. the Equipment shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
3.3.2. the Supplier shall arrange for the Equipment to be stored until delivery takes place and charge the Customer for all related costs and expenses (including insurance and any costs and expenses incurred by the Supplier in attempting to deliver or install the Equipment).
3.4. If the Customer disputes the delivery, installation or quality of the Equipment on installation by the Supplier, the Customer shall notify the Supplier within seven (7) Days of the Delivery Date.
4. The Supplier's Obligations
4.1. The Supplier agrees:
4.1.1. to install the Equipment specified in each Order safely and promptly and at the Installation Location and in a position as shall be agreed in writing in advance with the Customer;
4.1.2. to provide access to the Operating Manual or Help Centre or You Fix Self-Help Video Channel
4.1.3. on being notified by the Customer of any Equipment Fault, or breakdown of the Equipment, subject to clause 4.2 of these Terms of Use, to take reasonable action to supply the Services required to repair or replace the Equipment and keep the Equipment in working condition and to record as reported by the Customer the Equipment Checks, and any Equipment Fault as a Major Fault (cannot dispense RDP) or a Minor Fault (can dispense RDP).
4.2. The Supplier shall not be required to perform the Services if the Supplier reasonably believes that the Customer is in breach of any of its obligations in the Contract.
5. Payments
5.1. The Customer shall pay for the Services in accordance with the applicable Order and clause 4 of the General Terms, without previous demand.
6. Limitation of Liability and Customer Indemnity: The Customer's attention is particularly drawn to this clause
6.1. 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 Services shall be limited to:
6.1.1. €3,000,000 in respect of any loss arising from damage to physical property caused by the Equipment or the performance of the Services, save to the extent that such loss or damage has been caused by an act or omission of the Customer; and
6.1.2. for all other loss or damage the monthly pro-rated proportion of the total charges paid (or payable where the Customer pays for the Services in accordance with clause 4.3.2 of the General Terms) for the Services under the Order issued prior to the loss or damage occurring (calculated as at the date the claim arose).
ANNEX 3: 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 with the Equipment, including the Operating Manual or Help Centre or You Fix Self-Help Video Channel;
1.1.2. use the Cups for the supply of RDP only and dispense and sell all RDP only in the Cups sold or supplied by the Supplier or a Distributor (provided in the latter case that the Customer has entered into a separate agreement with the Distributor for the purchase of the Products and Cups);
1.1.3. only use the Products, Cups and RDP in accordance with the Contract, and for no other purpose; and
1.1.4. not to change any aspects of the Trade Marks, logos, images or branding of the Products and Cups.
1.2. Where the Equipment is supplied on a ‘Free on Loan Basis’ for a fixed loan period, the Customer must (unless expressly agreed otherwise in writing and signed by a director of the Supplier) purchase from the Supplier no less than:
1.2.1. the amount of Products required to make 20,000 Units of Products per piece of Equipment per year for each year of the fixed loan period; and
1.2.2. the number of Cups required to sell the volume of RDP produced by the amount of Products in clause 1.2.1 of these Terms of Sale per piece of Equipment per year for each year of the fixed loan period.
1.3. Purchases below the stipulated figures in clauses 1.2.1 and 1.2.2 of these Terms of Sale will allow, but not oblige the Supplier (at its sole discretion on a quarterly review basis) to terminate the Contract in accordance with clause 7.1 of the General Terms and seek relevant damages for the full amount that should have been paid pursuant to clause 1.2. of these Terms of Sale.
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 the time period specified by the Supplier.
3. Delivery
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 ten (10) 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 website (www.frozenbrothers.ie/contact)
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 7.2.3 or 7.2.4 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, Cups and Equipment; 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 570 of the Companies Act 2014 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. Payments
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 price list published 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.
8.3.1 . If the Supplier has incorrectly delivered (or procured the incorrect delivery of) the Products and Cups specified in the Order, the Customer shall be eligible to receive replacement items or cancel the order for the items.
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 website (www.frozenbrothers.ie/contact) 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 a return authorisation number (RTN) and instructions on how to proceed. If the item purchased isn't replaceable or 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 will be issued to the account used to purchase the Products or Cups, or replacements will be delivered to the delivery address of the account used to purchase the Products or Cups.
8.7. Where applicable, any replacements, refunds or credit notes will be made after deductions for the cost of any processing charge.
8.10. The Supplier shall use its reasonable endeavours to process replacements, refunds and credit notes within five (5) Business Days of receipt.
8.11. Any refund or credit note will be issued in the same currency as the payment for the items was made.
8.12. 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
ANNEX 4: SCOPE OF SERVICES
1. The customer's attention is particularly drawn to Annex 2, Terms of Use, clause 2, The Customer's Obligations, and clause 3, The Supplier's Obligations; and the following definitions of the General Terms, clause 1:
1.3. ‘Call out Charge’
1.12. 'Equipment'
1.13. ‘Equipment Checks’
1.14. ‘Equipment Fault’
1.15. ‘Equipment Issue’
1.20. ’Help Centre’
1.21. ‘IceScreen’
1.22. ‘IceStation’
1.23. ‘Information Icon’
1.25. 'Major Fault'
1.26. 'Minor Fault'
1.27. 'Operating Manual'
1.28. 'Order'
1.35. ‘Service Booking'
1.36. ‘Services’
1.37 ‘Site’
1.43. ’Uptime’
1.44. ‘We Fix’
1.45. ‘You Fix’
1.46. ‘You Fix Self-Help Video Channel’
2. The Supplier shall be entitled to raise and send to the Customer (and the Customer agrees to pay) an invoice for a Call-Out Charge for any Order for Services when the cause of the Equipment Fault or Equipment Issue is non-compliance with any of the following:
2.1. Annex 2, Terms of Use, The Customer’s Obligations, clauses 2.2.1 – 2.2.14, inclusive, clauses 3.2 – 3.4 inclusive
2.2 a service technician attends the site to complete an Order for Services and:
2.2.1. determines the information provided by the Customer in the “Equipment Checks” to be inaccurate or the action taken by the Customer to be incomplete; or
2.2.3 determines there is insufficient Product, or power or water, or CO2 (where required), or access to the Equipment at the Site to effectively diagnose or repair any Equipment Fault; or
2.2.4. rectifies any Equipment Issue; or
2.2.5. repairs any Equipment Fault or replaces any component which, in their expert judgement, is a result of damage, misuse or neglect or linked to the Customer’s supply of water or electricity to the Equipment; or
2.2.6. cannot gain access or is refused access to the site or to the Equipment or to any Frozen Brothers IPR associated with the Equipment; or
2.2.7. cannot complete an Order for Services due to any issues covered in Annex 4, Scope of Services, clause 4, General Exclusions.
2.3. the Customer requests or requires the Supplier to obtain any special consents, passes or permissions to access the Site to fulfill an Order for Services.
2.4. the Customer cancels or requests to reschedule an Order for Services less than 24 hours before a Service Technician or Install Technician is scheduled to attend the Site.
3. Authority to carry out Order for Services
3.1. When a service or install technician attends to carry out an Order for Services, the Customer shall ensure that there is an authorised representative present at the Site:
3.1.1 to sign an Order Completion if required; or
3.1.2. to authorise or pay a Call-Out Charge if required; or
3.1.3. to obtain any advice that the service or install technician provides to that person.
4. General Exclusions
4.1 In addition to the General Terms, clause 13.2 and Annex 2, Terms of Use, clause 3.2, the Supplier reserves the right to not accept, start, or complete any Order for Services if in its judgement it believes there is an unacceptable health or safety risk; or the Customer’s use of the Services is unreasonably excessive or persistent.
5. Complaints or disputes regarding Services
5.1. To lodge a complaint or dispute regarding Services, the Customer shall contact the Supplier using the relevant details on the Supplier's website (www.frozenbrothers.ie/contact)
Effective date: 2023-11-08