Standard Terms and Conditions of Sale (Terms) for Shepherd Neame Limited ("The Vendor")
All orders from the Purchaser shall be treated by the Vendor as an offer to purchase on these terms and conditions, alcoholic and non-alcoholic beverages and such other goods as may be offered for sale by the Vendor from time to time ("Products") and no contract shall come into existence until such offer has been accepted by the Vendor orally or in writing ("Contract"). Products are offered subject to availability.
No terms or conditions which the Purchaser may purport to impose shall form any part of the Contract between the Purchaser and the Vendor. No variation of these terms and conditions shall be binding unless agreed in writing and none of the Vendor's employees or agents has any authority to vary these terms and conditions by oral agreement. The Purchaser acknowledges that in entering into a Contract with the Vendor it does not rely on any representations or statements which may have been made by any such employee or agent but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Vendor shall be subject to correction without any liability on the part of the Vendor.
Price lists are subject to alterations by the Vendor without notice. The prices of Products shall be those shown in the Vendors published price list in force at the time of invoice. Prices quoted:
are exclusive of VAT which where applicable shall be due at the rate ruling on the date of the invoice
include excise duty at the rates applicable at the date of the publication
exclude packaging and delivery which shall be paid in addition by the Purchaser at the Vendors standard rate from time to time.
Payments for Products and of deposits for containers shall be made in full in accordance with the terms of any tenancy or other agreement or in the absence of any such agreement no later than the twenty third day of the month following the month of delivery (the Due Date). The time of payment of the price shall be of the essence of the Contract. Receipts for payment shall be issued only on request. If any payment is not made by the Due Date the Vendor may:
charge the Purchaser interest on a daily basis on outstanding sums at the rate of one per cent (1%) over the base rate of National Westminster Bank from time to time from the date payment was due to the date payment in full is received by the Vendor whether before or after judgement.
charge the Purchaser all the costs and expenses incurred by the Vendor in recovering payment including an internal administration charge and any legal fees (minimum charge £100)
cancel the Contract or suspend delivery of any Products ordered by the Purchaser and not yet delivered.
appropriate any payment made by the Purchaser to such of the product or Products supplied under any other contract between the Purchaser and the Vendor as the Vendor may think fit (notwithstanding any purported appropriation by the Purchaser)
Risk in the Products shall pass to the Purchaser on the Vendor loading them onto the vehicle of the Purchaser or its carrier or, where applicable, on the Vendor unloading them at the Purchasers premises.
All Products should be examined at the time of their delivery to the Purchaser and any obvious loss or damage must be noted on any delivery document signed by the Purchaser. The Vendor accepts no liability for loss or damage to Products in transit unless the Purchaser:
at the time of delivery, examines the Products delivered; and
retains for inspection all packaging material; and
endorses any delivery document with details of any obvious loss or damage or notifies the Vendor and, when applicable any independent carrier, in writing of any claim for any loss or damage by the end of the third working day after delivery.
All delivery dates quoted by the Vendor are estimates only and time shall not be of the essence in relation to such dates. The Purchaser may not cancel any Contract for failure to deliver by the estimated time unless the Purchaser notifies the Vendor and any independent carrier in writing by the end of the third working day after the estimated date of delivery specifying a reasonable period within which the Products are to be delivered and the Vendor fails to deliver within such period. The Products may be delivered by the Vendor in advance of the quoted delivery date on giving reasonable notice to the Purchaser.
The Vendor shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Vendor's obligations in relation to the Products, if the delay or failure was due to any cause beyond the Vendor's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Vendor's reasonable control:
Act of God, explosion, flood, tempest, fire or accident;
War or threat of war, sabotage, insurrection civil disturbance or requisition;
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of the governmental, parliamentary or local authority;
import or export regulations or embargoes;
strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Vendor or of a third party);
difficulties in obtaining raw materials, labour, fuels, parts of machinery;
power failure or breakdown in machinery.
The Vendor warrants that Products shall be free from defects in materials and workmanship and fit for human consumption at the time of delivery. The Vendors only liability in respect of Products supplied in breach of such warranty, whether arising out of its negligence or otherwise, shall be at its option, to grant to the Purchaser credit at the invoiced price or to replace such Products as soon as reasonably practicable provided that in all cases the allegedly faulty Products are returned within seven days from the date of delivery to the Vendor and are found after examination not to have complied with the above warranty.
Except in respect of death or personal injury caused by the Vendor's negligence, or liability for defective products under the Consumer Protection Act 1987 the Vendor shall not be liable to the Purchaser by reason of any representation (unless fraudulent), or any implied warranty, condition or other term or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Vendor, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products (including any delay in supplying or any failure to supply the Products in accordance with the Contract or at all) of their use or resale by the Purchaser.
Where the Products are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Vendor to delivery any one or more of the instalments in accordance with these Terms or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
Certain containers carry a deposit charge which shall be repaid or credited to the Purchaser provided such containers are returned to the Vendor in a sound condition within three months of their receipt by the Purchaser. The property in all returnable containers (whether or not a deposit has been charged) and all pallets (if any) used for delivery of the Products shall at all times vest in the Vendor. The Purchaser shall return all such returnable containers and pallets to the Vendor at the Vendor's expense in accordance with agreements as the Vendor shall from time to time specify. The full replacement value of any returnable containers (including carbon dioxide cylinders and any pallets not returned to the Vendor in a sound condition shall be payable by the Purchaser to the Vendor on demand (less credit for any deposits forfeited).
All packaged Products purchased from the Vendor for resale must be resold by the Purchaser in the conditions as sold or prescribed by the Vendor. Certain of the Vendor's Products are marked with best before dates. The Vendor disclaims any liability for Products sold after the best before date, nor will credit for any returns be given unless they are returned before the best before date.
Notwithstanding delivery and the pass of risk in the Products, or any other provision of these Terms, the property in the Products shall not pass to the Purchaser until the Vendor has received in cash or cleared funds payment in full of all the price of the Products and the balance of any other invoices due to the Vendor by the Purchaser. Until any such payment the Purchaser shall hold such Products as a fiduciary agent and bailee for the Vendor and shall keep them properly stored, protected and insured for no less then their invoice value and shall hold any proceeds of such insurance on trust for the Vendor. In the event of non-payment by the Purchaser by the Due Date the Vendor may at any time require the Purchaser to deliver up the Products to the Vendor and, if the Purchaser fails to do so forthwith, the Vendor shall be entitled to enter any premises where the Products are stored and recover possession of them.
Some of the Vendor's containers (eg keg) are pressurised. The Vendor shall not be responsible for any loss or damage resulting from the handling of these containers other than in accordance with the Vendor's written instructions. The Purchase shall permit, and shall require its customers to permit, the Vendor to have access during normal opening hours to any premises where the Vendors Products are retailed in draught to inspect dispense equipment for safety and quality control purposes.
Credit will be given for returned draught beer only where:
the beer has become accidentally spoilt
it is returned in the cask in which it was originally delivered
nothing other than finings have been added
an ullage ticket completed and signed by the Purchaser is attached to each cask and
traditional beers are returned within 30 days, and keg beers within 42 days, of racking.
All product dispense equipment installed by the Vendor in the Purchaser's premises remains the property of the Vendor. The Purchaser shall hold this equipment at his risk until such time as it is returned to the Vendor. The Vendor retains the right to invoice and charge the Purchaser for the reinstatement value of any equipment that the Purchaser fails to return within 28 days of formal notice by the Vendor. No product shall be dispensed through the Vendor's equipment other than that supplied by the Vendor to the Purchaser.
The Purchaser shall on request provide to the Vendor all information in its possession regarding the Purchaser's customers for Products obtained from the Vendor.
No waiver by the Vendor of any breach of the Contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
This clause 22 applies if:
the Purchaser makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or
the Purchaser ceases, or threatens to cease, to carry on business; or
the Vendor reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
If this clause applies then, without limiting any other right or remedy available to the Vendor, the Vendor may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Purchaser, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.