TERMS AND CONDITIONS
You should print a copy of these terms and conditions for future reference. However, our terms and conditions can also be found at: http://popsoda.co.uk/16/terms-and-condition.html
Please click on the button marked "I Accept" at the end of these terms and conditions if you accept them. Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Products from our site.
1. Information about us
1.1 We operate the website . We are Popsoda Limited, a company registered in England and Wales under company number 04933008 and with our registered office at The Gatehouse, 453 Cranbrook Road, Ilford, Essex, IG2 6EW. Our main trading address is 48-50, Fowler Road, Hainault Business Park, Ilford, Essex, IG6 3UT.
1.2 Our VAT number is GB 626 2366 44.
2.1 In these terms and conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to writing or written includes faxes but not e-mails.
2.2 The following terms have the meaning ascribed to them in the specified clause:
(a) Account Details: clause 3.4;
(b) Confirmation E-mail: clause 4.1(b);
(c) Contract: clause 4.1;
(d) Delivery Location: clause 5.1;
(e) Dispatch Confirmation: clause 4.1(d);
(f) Force Majeure Event: clause 14;
(g) PFI: clause 4.1;
(h) Purchased Products: clause 5.1.
3. Service availability & status
3.1 All potential customers must be pre-approved by us before they may view the Products available on our site and place orders for Products.
3.2 Requests for approval must be submitted via the webpage http://popsoda.uk/registration.php.
3.3 You warrant that, when you apply for approval:
(a) you will:
(i) not (without our prior, written permission) re-sell the Products via any:
(A) eBay website (whether operated by eBay Inc. or any affiliated person); or
(B) Amazon website (whether operated by Amazon.com Inc. or any affiliated person);
(ii) in deciding at what price to re-sell the Products, take into account the position of the brand of the Products within the market as well as the recommended retail price listed on our site;
(b) all of the information you provide to us is wholly accurate; and
(c) you are not a consumer and will purchase Products from us only for your business purposes.
3.4 If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures (Account Details), you shall:
(a) treat such information as confidential; and
(b) not disclose it to any third party.
3.5 If you become aware that, or should have become aware that, a third party is aware of your Account Details and/or has used them to place an order with us, you shall notify us immediately.
4. How the contract is formed between you and us
4.1 After placing an order, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an inquiry regarding the Products. All orders are subject to a prior communication from us, offering to sell the Products to you. We will confirm such offer to you:
(a) where you do not have a credit account with us, by sending you an e-mail with a pro forma invoice (PFI) for the price of the Products and any applicable delivery charges; or
(b) where you do have a credit account with us, by sending you an e-mail (Confirmation E-mail) confirming:
(i) that we are processing your order; and
(ii) the price of the Products and any applicable delivery charges.
The contract between us (Contract) will only be formed when:
(c) you have paid the PFI (where you do not have a credit account with us); or
(d) we have sent you an e-mail confirming dispatch of the Products (where you have a credit account with us or we otherwise agree to dispatch the Products prior to receipt of payment) (Dispatch Confirmation).
4.2 The Contract will relate only to those Products:
(a) contained in the PFI (where you do not have a credit account with us); or
(b) contained in the Dispatch Confirmation (where you have a credit account with us or we otherwise agree to dispatch the Products prior to receipt of payment).
We will not be obliged to supply any other Products which may have been part of your order until we have:
(c) issued a PFI for those Products and that PFI has been paid (where you do not have a credit account with us); or
(d) sent you a Dispatch Confirmation for those Products (where you have a credit account with us or we otherwise agree to dispatch the Products prior to receipt of payment).
In other words, without prejudice to the foregoing, where you send us an order/inquiry, we may not be able to supply all of the requested Products in that order/inquiry.
5.1 We shall deliver the Products for which you have paid via a PFI or from your credit account or which we have otherwise agreed to dispatch prior to receipt of payment (Purchased Products) to the location specified by you (Delivery Location) at any time after (as applicable) payment of the PFI or the sending of the Dispatch Confirmation.
5.2 Delivery of the Purchased Products shall be completed on the Purchased Products' arrival at the Delivery Location.
5.3 Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Purchased Products that is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Purchased Products.
5.4 If we fail to deliver the Purchased Products, our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Purchased Products. We shall have no liability for any failure to deliver the Purchased Products to the extent that such failure is caused by a Force Majeure Event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Purchased Products.
5.5 If you fail to accept delivery of the Purchased Products within three days of us notifying you that the Purchased Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or our failure to comply with our obligations under the Contract:
(a) delivery of the Purchased Products shall be deemed to have been completed at 9.00 am on the third day after the day on which we notified you that the Purchased Products were ready; and
(b) we shall store the Purchased Products until delivery takes place and charge you for all related costs and expenses (including insurance).
5.6 If, 14 days after the day on which we notified you that the Purchased Products were ready for delivery, you have not accepted delivery of them, we may resell or otherwise dispose of part or all of the Purchased Products and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Purchased Products or charge you for any shortfall below the price of the Purchased Products.
5.7 You shall not be entitled to reject the Purchased Products if we deliver up to and including % more or less than the quantity of Purchased Products ordered, but a pro rata adjustment shall be made to the PFI on receipt of notice from you that the wrong quantity of Purchased Products was delivered.
6. Risk and title
6.1 The risk in the Purchased Products shall pass to you on completion of the delivery.
6.2 Subject to clause 6.3, where:
(a) you do not have a credit account with us and payment of the relevant PFI has been made prior to dispatch; or
(b) you have a credit account with us and we have deducted the relevant payment from such account,
title to the Purchased Products will pass to you when we dispatch the Purchased Products to you.
6.3 If at any time:
(a) where you do not have a credit account with us (and you have made payment of the relevant PFI), payment of the relevant PFI is recalled, withdrawn or (in the case of a cheque) bounces;
(b) where you have a credit account with us (and we have deducted the relevant payment from such account), you dispute our entitlement to deduct such payment; or
(c) (for any reason whatsoever) payment for the Purchased Products has not been received by us or is disputed,
title to the Purchased Products shall either (as applicable) automatically and immediately revert to us or remain with us and until (at our option) you have made full and final payment for such Purchased Products (in which case title shall revert/pass to you) or returned them to us, you shall:
(d) hold the Purchased Products on a fiduciary basis as our bailee;
(e) not sell (or attempt to sell) the Purchased Products;
(f) store the Purchased Products separately from all other goods held by you so that they remain readily identifiable as our property;
(g) not remove, deface or obscure any identifying mark or packaging on or relating to the Purchased Products;
(h) maintain the Purchased Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(i) notify us immediately if you become subject to any of the events listed in clause 6.4; and
(j) give us such information relating to the Purchased Products as we may require from time to time.
6.4 If you do not have title to the Purchased Products and you become subject to any of the events listed below and notify us accordingly (or if we reasonably believe that any such event is about to happen), then, provided that the Purchased Products have not been resold or irrevocably incorporated into another product and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Purchased Products and, if you fail to do so promptly, enter any of your premises or those of any third party where the Purchased Products are stored in order to recover them. For the purposes of this clause 6.4, the relevant events are:
(a) you suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or (being a company) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) have any partner to whom any of the foregoing apply;
(b) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enters into any compromise or arrangement with your creditors (other than (where you are a company) where these events take place for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or your solvent reconstruction);
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with winding you up (other than for the sole purpose of a scheme for your solvent amalgamation with one or more other companies or your solvent reconstruction);
(d) (being an individual) you are the subject of a bankruptcy petition or order;
(e) one of your creditors or encumbrancers attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within seven days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over you;
(g) (being a company) a floating charge holder over your assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
(i) any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 6.4(a) to clause 6.4(h) (inclusive);
(j) you suspend, threaten to suspend, cease or threaten to cease to carry on all or substantially the whole of your business;
(k) your financial position deteriorates to such an extent that, in our opinion, your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) you die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your affairs or become a patient under any mental health legislation.
7. Your insolvency or incapacity
7.1 If you become subject to any of the event listed in clause 6.4 (or we reasonably believe that you are about to become subject to any of them and notify you accordingly), without prejudice to any other right or remedy that we may have, we may cancel or suspend all further deliveries to you without liability to you save that, in the event that you have paid for Products not yet dispatched and we cancel the relevant Contract, then we shall refund such amount to you.
7.2 If payment of any PFI is recalled, withdrawn or (in the case of a cheque) bounces, payment of such PFI shall become immediately due. In this event, you shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Holdings PLC's base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount (whether before or after judgment). You shall pay the interest together with the overdue amount.
7.3 You shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment (in whole or in part) of any amount due to us under the Contract. We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
8. Price and payment
8.1 The price of the Products and our delivery charges will (except in cases of obvious error) be as quoted on our site from time to time. Product prices and delivery charges are liable to change at any time but any changes will not affect orders in respect of which we have already sent you a PFI or Dispatch Confirmation.
8.2 Product prices and delivery charges exclude VAT, which (if applicable) shall also be payable by you.
8.3 Our site contains a large number of Products and it is always possible that, despite our best efforts, some of the Products listed on our site may be incorrectly priced. We will normally verify prices as part of our internal processes. If a Product's correct price is higher than the price stated on our site, we will normally, at our discretion, either contact you for instructions before issuing the PFI or Confirmation E-mail (as applicable) or reject your order and notify you of such rejection.
8.4 Where you do not have a credit account with us, we are under no obligation to provide any Product to you at an incorrect (lower) price, even after we have sent you a PFI (and you have paid that PFI) if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as an error.
8.5 Payment for all Products must be by credit or debit card, cheque, online transfer or deduction from a deposit account.
9.1 We warrant that, on delivery, the Purchased Products shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by us.
9.2 Subject to clause 9.3, if:
(a) you give notice in writing to us within a reasonable time of discovery that some or all of the Purchased Products do not comply with the warranty set out in clause 9.1 (and such Purchased Products do not in fact comply with such warranty);
(b) we are given a reasonable opportunity of examining such Purchased Products; and
(c) you (if asked to do so by us) return such Purchased Products to our place of business at our cost (in the event that it turns out that there is no breach of the warranty set out in clause 9.1, you shall bear cost of returning such Purchased Products),
we shall, at our option, repair or replace the defective Purchased Products, or refund the price of the defective Purchased Products in full.
9.3 We shall not be liable for Purchased Products' failure to comply with the warranty set out in clause 9.1 in any of the following events:
(a) you make any further use of the Purchased Products after giving notice in accordance with clause 9.2;
(b) the defect arises because you failed to follow our instructions as to the storage of the Purchased Products;
(c) the defect arises as a result of us following any drawing, design or request supplied by you;
(d) you alter or repair such Purchased Products without our written consent;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Purchased Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.4 Except as provided in this clause 9, we shall have no liability to you in respect of the Purchased Products' failure to comply with the warranty set out in clause 9.1.
9.5 These terms and conditions shall apply to any repaired or replacement Products supplied by us.
10. Limitation of liability
10.1 Subject to clause 10.2:
(a) we shall not be liable to you (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any indirect or consequential loss arising under or in connection with the Contract;
(b) unless as a result of our negligence, we shall have no liability for any unauthorised access by a third party to any data provided by you to us;
(c) our total liability to you in respect of all other losses arising under or in connection with the Contract (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) shall not exceed a sum equal to 150% of the price of the Purchased Products; and
(d) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.2 Nothing in this agreement excludes or limits our liability for:
(a) death or personal injury caused by our negligence (or the negligence of our employees, agents or sub-contractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) defective products under the Consumer Protection Act 1987; or
(d) any other matter for which it would be illegal for us to exclude/limit, or attempt to exclude/limit, our liability.
11. Import duty
11.1 If you order Products from our site for delivery outside the UK, they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order.
11.2 Please also note that you must comply with all applicable laws and regulations of the country for which the products are destined. We will not be liable for any breach by you of any such laws.
12.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or fax.
12.2 A notice or other communication shall be deemed to have been received:
(a) if delivered personally, when left at the address referred to in clause 12.1;
(b) if sent by pre-paid first class post or recorded delivery, at 9.00 am on the third day after posting;
(c) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or
(d) or, if sent by by fax, one day after transmission.
12.3 The provisions of this clause 12 shall not apply to the service of any proceedings or other documents in any legal action.
13. Assignment and sub-contracting
13.1 The contract between you and us is binding on you and us and on our respective successors and assignees.
13.2 We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights or obligations under the Contract.
13.3 You may not assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract without our prior written consent.
14. Events outside our control
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
15.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
15.2 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. Entire agreement
Subject to clause 10.2:
(a) these terms and conditions and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the subject matter of any Contract;
(b) we each acknowledge that, in entering into a Contract, neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these terms and conditions or the documents referred to in them; and
(c) each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract.
18.Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
19. Our right to vary these terms and conditions
19.1 We have the right to revise and amend these terms and conditions from time to time.
19.2 You will be subject to the policies and terms and conditions in force at the time that you order products from us, unless:
(a) any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you);
(b) if you:
(i) do not have a credit account with us, we notify you of the change to those policies or these terms and conditions before we send you the PFI (in which case you will be deemed to have accepted the change to the terms and conditions if you subsequently pay the PFI);
(ii) do have a credit account with us, we notify you of the change to those policies or these terms and conditions before we send you the Confirmation E-mail (in which case you will be deemed to have accepted the change to the terms and conditions unless you notify us that you wish to withdraw your order).
20. Law and jurisdiction