Trade Account - Terms & Conditions

TERMS AND CONDITIONS

1. INTERPRETATION
In these terms and conditions, except where inconsistent with the context, the following expressions shall have the following meanings:

Agreement: means these terms and conditions as amended from time to time in accordance with clause 15.8.
Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Customer: the person referred to as such overleaf.
Commencement Date: means the date by which this Agreement has been signed by both parties (the
date the second party signs being the Commencement Date).
Delivery Address: the address specified as such overleaf.
Equipment: means casks, bottles, containers and cellar and dispensing equipment owned or provided by the Supplier.
Force Majeure Event: has the meaning given in clause 11.
Goods: the beverages (or any one or more of them) contained in the Supplier’s stock list as amended from time to time.
Order: an order for Goods given in accordance with clause 2.1.
Person: includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
Supplier: the person referred to as such overleaf including (as the case may be) its personal representatives, successors or permitted assigns.
Territory: means the United Kingdom.

2. BASIS OF CONTRACT
2.1 Every Order shall:
(a) contain details of the Goods which are to be supplied; and (b) subject to the provisions of clause 4.6, the quantity.
2.2 An Order constitutes an offer by the Customer to purchase Goods in accordance with the provisions of
this Agreement. The Customer warrants the information relating to it set out overleaf is correct and that it is entitled to order the type and quantity of the Goods contained in any Order.
2.3 An Order shall only be deemed to be accepted when the Supplier tenders delivery of some or all of the Goods which are the subject of the Order, at which point a contract shall come into existence. For the avoidance of doubt the Supplier is under no
obligation to accept any Order.
2.4 The provisions of this Agreement apply to each contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any
descriptions or illustrations contained in the Supplier's catalogues or brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods described by them. They shall not form part of any contract or have any contractual force.

3. DELIVERY
3.1 The Customer shall ensure that any Equipment in which the Goods are delivered is available for collection at such times as the Supplier shall reasonably request.
3.2 The Supplier shall deliver the Goods to the Delivery Address or in accordance with any other instructions received from the Customer. Delivery shall be deemed to be completed as soon as the Goods have been off-loaded at the Delivery Address or in
accordance with any other instructions received from the Customer (as the case may be).
3.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Without prejudice to the generality of the foregoing the Supplier shall not be liable for any delay in delivery of Goods that is caused by a Force Majeure
Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
3.4 The Supplier may deliver Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4. QUALITY AND QUANTITIES
4.1 The Buyer shall be deemed to have quantified the Goods upon delivery and the Seller shall have no liability to the Buyer in relation to short delivery unless such short delivery is notified to the Seller (or its employees or agents) at the time of delivery.
4.2 Subject to clause 4.3, if the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods are defective the Supplier shall issue a credit note in respect of the price of the defective Goods.
4.3 The Supplier shall not be liable for any defect in the Goods if the defect arises because the Customer failed to comply with any of the terms of this Agreement or to follow the Supplier's oral or written instructions as to the storage, commissioning and use of the Goods or (if there are none) good trade practise regarding the same.
4.4 Except as set out in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
4.5 In accordance with HM Customs and Excise guidance in relation to the non-drinkable sediment in cask-conditioned Goods, the quantity of Goods by reference to which duty has been paid is 0.97 litres per litre and pro rata. For Keg and Bright Goods the quantity of Goods by reference to which duty has been paid is 1 litre per litre and pro rata. For returnable bottled Goods the quantity of Goods by reference to which duty has been paid is 500 ml for large bottles and 275 ml for small bottles.
4.6 The minimum quantities for any Order are two Firkins (81.8 litres),10 cases (in the case of bottled beers or ciders) and 24 bottles (in the case of wine).

5. TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer on completion of delivery in accordance with clause 2.3.
5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for all Goods supplied to the Customer.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold Goods on a fiduciary basis as the Supplier's bailee;
(b) store Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and (f) give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
5.4 If before title to Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that Goods has not been resold, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6. PRICE AND PAYMENT
6.1 The price of the Goods shall be the price set out in the Supplier's published price list in force as at the date the Order is accepted by the Supplier.
6.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or (c) any delay caused by any instructions of the Customer or failure of the Customer to give adequate or accurate information or instructions.
6.3 The Supplier reserves the right to invoice the Customer for the costs and charges of packaging and transport of the Goods.
6.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of Goods.
6.5 The Supplier may invoice the Customer for the Goods on or at any time after the receipt of an Order.
6.6 The Customer shall pay for the Goods in cash on delivery unless credit terms have, at the entire discretion of the Supplier, been offered to the Customer (and such terms have not been withdrawn or suspended) in which case the Customer shall pay the invoice relating to the Goods in full and in cleared funds within the agreed credit terms. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
6.7 If the Customer fails to make any payment due to the Supplier under this Agreement (including any contract formed pursuant to it) by the due date for payment (due date), then the Customer shall pay: (a) interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base 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 judgement. The Customer shall pay the interest together with the overdue amount; and (b) the reasonable administrative charges of the Supplier in handling the failure to pay by the due date together with the Supplier’s bank’s charges in respect of a cheque or direct debit being returned by the Customer’s bank.
6.8 The Customer shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.9 The Customer agrees that the Supplier may make searches with credit reference agencies and fraud prevention agencies to in respect of the Customer and (as the case may be) its directors to manage the Customer’s credit account, to take decisions regarding credit, including whether to make available or to continue or to extend existing credit. The Supplier shall not disclose any information obtained carrying out such searches to any third party without the Customer’s consent except as may be required by law.

7. CUSTOMER’S OBLIGATIONS AND EQUIPMENT
7.1 The Customer undertakes and agrees with the Supplier as a fundamental term of this Agreement at all times during the term of this Agreement to:
(a) not sell the Goods to any person acting in the course of a business without the prior written consent of the Supplier; (b) keep all stocks of Goods which it holds in the Equipment in which it was supplied; (c) store the Goods in an environment appropriate for its storage, and provide appropriate security for Goods, all at its own cost; (d) ensure a safe and clean environment at its premises for all of the Supplier’s personnel; (e) not alter or adulterate the Goods in any way.
7.2 The Supplier may from time to time provide the Customer with one or more items of the Equipment and hereby grants to the Customer, with effect from the date of delivery or installation of the Equipment (as the case may be) for the duration of this Agreement or, if earlier the date of request for the return of any item of Equipment in accordance with the provisions of clause 7.4, a non-exclusive royaltyfree licence to use the Equipment for the purpose only of storing and dispensing the Goods. Returns of the Equipment shall be at the Supplier's expense.
7.3 The Customer shall use the Equipment with all reasonable skill and care and in accordance with best industry practise and hereby indemnifies the Supplier against all and any damage to the Equipment caused by persons using the same.
7.4 Notwithstanding the provisions of clause 7.2 the Customer must return (at its expense and in good working order and condition) all items of the Equipment at any time on demand from the Supplier. Until they have been returned or repossessed, the Customer shall be solely responsible for the safe keeping, supervision, custody and insurance of them. The Customer hereby irrevocably authorises the Supplier to enter any premises of the Customer or of any third party where the Equipment is held in order to recover the same if the Customer fails to so return the Equipment promptly.

8. DURATION AND TERMINATION
8.1 This Agreement begins on the Commencement Date and, subject to clause 8.2, shall continue for an initial term of 12 months and indefinitely after that until terminated by the Supplier or the Customer giving to the other at least six months' prior written notice to expire on or after the expiry date of the initial term.
8.2 The Supplier may terminate this agreement or any outstanding contract or both with immediate effect (or following such notice period as it sees fit) without prejudice to any of its rights or remedies, by giving written notice to the Customer if: (a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven Days after being notified in writing to make such payment; or (b) the Customer commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 14 Days after being notified in writing to do so; or (c) commits any breach of the provisions of clause 7 of this Agreement ; or (d) the Customer gives to the Supplier any false or misleading information, or makes any misrepresentation in connection with obtaining this Agreement or during the term of this Agreement; or (e) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its 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) has any partner to whom any of the foregoing apply; (f) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (g) (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 the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (h) (being an individual) the Customer is the subject of a bankruptcy petition or order; (i) a creditor or encumbrancer of the Customer 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 its assets and such attachment or process is not discharged within 7 Days; (j) (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 the Customer; (k) (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver; (l) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets; (m) 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 8.2(e)to clause 8.2 (l) (inclusive); (n) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; (o) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under this Agreement or any contract formed pursuant to it has been placed in jeopardy; and (p) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation or any personal guarantor of the Customer’s obligations in this Agreement dies.

9. CONSEQUENCES OF TERMINATION
9.1 On termination or expiry of this agreement for any reason, the Customer shall immediately pay the Supplier the full amount of all sums due from the Customer to the Supplier together with any interest payable in accordance with clause 6.7.
9.2 On termination or expiry of this Agreement for any reason, the Customer must return (at its expense and in good working order and condition) all items of the Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for the safe keeping, supervision, custody and insurance of them. The Customer hereby irrevocably authorises the Supplier to enter any premises of the Customer or of any third party where the Equipment is held in order to recover the same if the Customer fails to so return the Equipment promptly.
9.3 If the Customer becomes subject to any of the events listed in clause 8.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them, then, without limiting any other right or remedy available to the Supplier, the Supplier may on notifying the Customer: (a) cancel or suspend all further deliveries under any contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due; and/or (b) withdraw or suspend any credit terms provided to the Customer.
9.4 Termination of this Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of this Agreement shall continue in full force and effect.

10. LIMITATION OF LIABILITY
10.1 Nothing in this Agreement shall limit or exclude the Supplier's liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (d) defective products under the Consumer Protection Act 1987; or (e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability. 
10.2 Subject to clause 10.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect, special or consequential loss or for any loss of anticipated profit or third party claims howsoever arising under or in connection with this Agreement.

11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under this Agreement 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.

12. TRADE MARKS
12.1 The Supplier hereby grants to the Customer the nonexclusive right, in the Territory, to use the Trade Marks in the sale of the Goods, subject to, and for the duration of, this Agreement.
12.2 The Goods shall be sold under the Trade Marks.
12.3 The Customer shall not, without the prior written consent of the Supplier, alter or make any addition to the labelling or packaging of the Goods displaying the Trade Marks. The Customer shall not alter, deface or remove any reference to the Trade Marks, any reference to the Supplier or any other name displayed on the Goods or their packaging or labelling.
12.4 The Supplier makes no representation or warranty as to the validity or enforceability of the Trade Marks or as to whether they infringe any intellectual property rights of third parties.
12.5 The Customer shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Marks granted under this agreement.
12.6 The Customer shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity.
12.7 Each party shall promptly give notice in writing to the other if it becomes aware of any infringement or suspected infringement of the Trade Marks or any other intellectual property rights relating to the Goods.
12.8 Each party shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this clause 12, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.

 

13. GUARANTEE
13.1 In consideration of the Supplier entering into the Agreement with the Customer, the person signing the Agreement on behalf of the Customer where the Customer is a limited liability partnership or a limited liability company (the Individual) hereby agrees to enter into the Agreement in his personal capacity, as primary obligor(s), to; (a) guarantee(s) the punctual payment of all sums payable by the Customer pursuant to the Agreement or in consequence of any breach of the provisions of the Agreement; (b) undertake(s), immediately on demand, to perform or procure the performance of all the Customer's obligations referred to in clause 13.1 (a) above; and (c) undertake(s) to pay to the Supplier, immediately on demand and unconditionally, such sum to make good all losses, damage, costs and expenses arising out of the Customer's failure to pay such sums on the due date, or the Individual's failure to comply with the provisions of clause 13.1 (a) and clause 13.1 (b) above.
13.2 Before making a demand under clause 13.1 above, it shall not be necessary for the Supplier to have made a demand on, taken out proceedings against, or taken any action to enforce any security against the Customer or any other person.
13.3 The Individual's liability under this guarantee shall not be reduced, discharged or adversely affected in any way, by: (a) any unenforceability, invalidity, irregularity, frustration or discharge by operation of law of any of the Customer’s obligations under the Agreement; or (b) any legal limitation, disability, incapacity or other circumstances relating to the Customer; or (c) the Supplier compromising, varying, extending, dealing with, renewing, releasing, refusing or neglecting to perfect or enforce any right, remedy or security against the Customer in respect of the Agreement; or (d) anything which, but for this provision, might discharge, reduce or extinguish any of the Individual's liabilities under this Personal Guarantee.
13.4 This guarantee is a continuing guarantee and shall continue in effect until the Customer has paid and performed all sums and all obligations arising under the Agreement from time to time.
13.5 The Individual shall not, until all of the Customer's obligations arising under the Agreement from time to time have been finally performed and paid in full, exercise any right: (a) of subrogation and indemnity; or (b) to take the benefit of, share in or enforce any security or other guarantee or indemnity for any of the Customer's obligations; or (c) to prove in the liquidation of the Customer, other than in accordance with the Supplier's instructions.
13.6 If the Individual exercises any of the rights referred to in clause 13.5 above, he shall: (a) hold any amounts recovered on trust for the Supplier; and (b) pay them to the Supplier on demand.

 

14. SUPPLY CHAIN OBLIGATIONS
The Supplier expects the Customer to co-operate with it regarding its compliance with any legislation or other requirement introduced by government and enforced by national or local authorities including, without prejudice to the generality of the foregoing, HM Revenue and Customs, the Department for Environment Food & Rural Affairs and the Food Standards Agency.
 

15. GENERAL
15.1 Assignment and subcontracting
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. (b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of the Supplier.
15.2 Notices
(a) Any notice or other communication given to a party under or in connection with this Agreement 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, fax or e-mail. (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00am on the second Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Day after transmission. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.3 Severance
(a) If any court or competent authority finds that any provision of this Agreement (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 this Agreement shall not be affected. (b) If any invalid, unenforceable or illegal provision of this Agreement 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.
15.4 Waiver
A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
15.5 Third party rights
A person who is not a party to this Agreement shall not have any rights under or in connection with it.
15.6 No partnership
Nothing in this Agreement shall create any partnership, joint venture, or relationship of principal and agent between the parties.
15.7 No warranty
Each party agrees that it enters into this Agreement without relying on any representation warranty or other provision except as expressly provided in this agreement. Accordingly all conditions warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
15.8 Entire Agreement and Variation
This agreement contains the entire agreement between the parties in respect to its subject matter and supersedes all previous agreements and understandings between the parties and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.
15.9 Governing law and jurisdiction
This agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.