TERMS & CONDITIONS OF SALE
In these Conditions, the following words shall have the following meanings:
“Brand” – the design, labelling, features and logo of or appearing on the packaging and bottle or any other container in which the Goods are contained or presented together with all other forms of branding associated with the Goods;
“Company” LWC Drinks Limited (Company number 0767707) whose registered office is at Unit 3 Stainburn Road, Openshaw, Manchester M11 2ER;
“Conditions” – these terms and conditions of sale;
“Contract” – the agreement (which shall be governed by these Conditions) between the Company and the Customer for the sale and purchase of Goods;
“Control” – means control as defined in section 416 of the Income and Corporation Taxes Act 1988;
“Customer” – means the person, firm, company or other legal entity to whom the Goods are supplied and to which the invoice, order acknowledgement or delivery note is addressed;
“Goods” – any and all of those beers, wines, spirits, soft drinks and other articles and services specified in the invoice, order acknowledgement or delivery note being supplied to the Customer by the Company;
“Order” – any order placed by the Customer to purchase Goods from the Company;
“Parties” – the Company and the Customer.
2. BASIS OF SALE
2.1. Any Order constitutes an offer by the Customer to purchase the quantity and type of Goods referred to in the Order, which the Company shall be entitled to accept or reject at its discretion.
2.2. The Customer acknowledges that by placing an Order with the Company it is bound by these Conditions and all other terms and conditions, whether express or implied, are hereby excluded (to the extent permissible under English law) in their entirety. In particular, these Conditions shall prevail in the event of any conflict between these Conditions and any terms and conditions which appear on the Customer’s order form or on or in any other communication passing between the Parties.
2.3. No variation or amendment to these Conditions shall be binding unless agreed in writing by a director of the Company and a duly authorised representative of the Customer.
2.4 Any samples, descriptions, advertising and/or marketing materials provided by the Company are intended as guidance only and are only intended to give a general approximation of the Goods in question.
2.5 The Customer acknowledges that the Company may at any time discontinue or change its range of Goods without liability to the Customer.
3.1. Any time or date for delivery of the Goods given by the Company shall only be an estimate. The Company shall use its reasonable endeavours to comply with such estimated time or date for delivery but time of delivery shall not be of the essence and the Company shall not be held liable for any loss or damage howsoever resulting to the Customer by reason of delay in delivery.
3.2. The Company shall be entitled to determine, in its reasonable opinion, the actual method, date and time of delivery and will not be obliged to deliver Goods outside mainland England, Scotland and Wales. Delivery of the Goods shall be deemed to take place when the Goods arrive at the address designated for delivery.
3.3. The Customer shall ensure that the Company (or its agent or carrier as applicable) shall have sufficient access to the designated premises for delivery to enable safe and proper delivery of the Goods. If this obligation is not fulfilled by the Customer, the Company may charge the Customer for any additional costs and expenditure incurred by the Company as a result of such failure.
3.4. The Company shall be entitled but not required to deliver the Goods in instalments and to invoice the Customer for each instalment.
3.5. If the Customer refuses or fails to take delivery of the Goods at a time when the Company could reasonably expect the Customer to take delivery then, without prejudice to any other right or remedy available to the Company, the Company may:
3.5.1 withhold delivery of any other Goods;
3.5.2 store the Goods until actual delivery is made and charge the Customer for the costs (including insurance) of storage; and/or
3.5.3 sell the Goods at the best price readily obtainable and (after deducting all storage and selling expenses) give the Customer a credit of such amount against the price payable for such Goods under the Contract; and in any case shall be entitled to charge interest (both before and after judgment) on the price payable for the Goods under the Contract at 8% above the base rate from time to time of National Westminster Bank plc from the date of delivery until the date on which the Goods are actually received by the Customer.
3.6. The Company shall have no liability to the Customer in respect of damage to the outside packaging containing the Goods where it appears damaged on receipt by the Customer, or where fewer than the number of Goods indicated on the delivery note are actually received by the Customer, unless the Customer notifies the Company of such damage or short delivery in writing received by the Company within two days of receipt of the Goods or invoices as appropriate otherwise than merely by a note on the delivery note.
3.7. If the Goods have not been delivered despite receipt by the Customer of the Company’s invoice relating to them, then unless the Customer notifies the Company within 7 days after the date of such invoice no claim against the Company may be made in respect of non-delivery of those Goods.
3.8. If the Company agrees that the Customer has a valid claim for any damage caused to Goods during transit or short delivery, the Company’s only obligation in respect of such loss or damage shall, at the Company’s option, be to:
3.8.1. make good any damage or short delivery of the Goods;
3.8.2. replace such damaged Goods which have been returned to it by and at the expense of the Customer; and/or
3.8.3. in either case make a full refund in respect of such Goods; and such making good, replacement or refund shall be the Customer’s sole remedy in respect of any claims it has for any damage caused to Goods during transit or short delivery.
3.9. The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
3.10. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within two days of the date when the Goods would in the ordinary course of events have been received.
3.11. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the Contract rate price against any invoice raised for such Goods.
4. PRICES AND PAYMENT
4.1. The prices of the Goods shall be as featured in the Company’s price list at the time of placement of any Order.
4.2. In addition to all amounts payable under the Contracts, the Customer shall pay all applicable taxes including Value Added Tax.
4.3. Commodities may be available in single bottles, except where stated otherwise in the Company’s price list, but these may be subject to a surcharge.
4.4. Container sizes quoted in the Company’s price list and on any other documentation are trade descriptions only and are not intended as a guarantee of the actual volume of the Goods within the container.
4.5. Payment for the Goods shall be made by the Customer by cash (or by cheque if the prior agreement of the Company has been obtained) on delivery and prior to the unloading of the Goods.
4.6. If the Company has granted credit facilities to the Customer, payment for the Goods shall be made:
4.6.1. within 14 days from the date the delivery took place; or
4.6.2. at such dates as are specified in correspondence from the Company; and the Company reserves the right to refuse to accept any Orders and/or to suspend delivery of any Goods if such Goods would result in the Customer exceeding its credit limit or if the credit limit has already been exceeded.
4.7. The Customer shall not deduct from the price of the Goods (and related costs charged by the Company) any other monies due or claimed to be due to the Customer from the Company in respect of the Contract or any other contract.
4.8. Deposit charges on containers must be paid for at the time of delivery and will be credited in full when the containers are returned to the Company in good condition.
4.9. If the Customer fails to make payment in accordance with the Conditions the Company shall be entitled without further notice to:
4.9.1. terminate this Contract immediately upon written notice and any other contract with the Customer or suspend all further deliveries of Goods;
4.9.2. charge the Customer interest in accordance with the ‘Late Payment of Commercial Debt Interest act 1998’ from the date payment was due until the date on which payment is made;
4.9.3. request all other sums due from the Customer to be paid immediately; and
4.9.4. charge the Customer for any third party charges incurred by the Company in connection with any failure to make payment, including but not limited to legal costs and bank charges for rejecting or presenting cheques.
5. WARRANTIES AND LIABILITY
5.1. Subject to clause 3.6, the Company warrants that the Goods shall be delivered to the Customer in a materially undamaged condition and free from any material defects.
5.2. If any of the Goods are defective and are covered by the warranty in clause 5.1 above the Company shall at its sole option either supply replacement Goods or refund the price which has been paid by the Customer for the defective Goods. Such replacement or refund shall be the Customer’s sole remedy in respect of any claims it has under the warranty given by the Company in clause 5.1 above.
5.3. Except where expressly provided by these Conditions the Company gives no warranties, conditions, guarantees or representations as to the quality or fitness for a particular purpose of the Goods and all other warranties, conditions, guarantees or representations, whether express or implied, oral or in writing are hereby excluded.
5.4. The Company’s total aggregate liability in connection with a Contract (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise) , including without limitation liability to the Customer for any direct physical damage to tangible property, shall not exceed £100,000.
5.5. Except as expressly provided by these Conditions, the Company shall not be liable, howsoever arising, including without limitation in connection with or arising out of the design, manufacture, supply, use of or otherwise relating to the Goods (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise), for any:
5.5.1 loss of anticipated profits and/or damage to goodwill;
5.5.2 pure economic and/or other similar losses;
5.5.3 special damages;
5.5.4 aggravated, punitive and/or exemplary damages;
5.5.5 consequential losses and/or indirect losses;
5.5.6 loss and/or corruption of data; and/or
5.5.7 business interruption, wasted overheads, loss of business, loss of contracts and/or loss of opportunity.
5.6. Subject to clause 5.7, no action, regardless of form, arising out of the transaction under the Contract may be brought by the Customer more than two years after the cause of such action has accrued.
5.7. Nothing in these Conditions shall exclude or limit the Company’s liability for death or personal injury caused by its own negligence, any liability for fraud or fraudulent misrepresentation or any other liability which the Company is not permitted to exclude or limit as a matter of law.
The Customer shall indemnify the Company in respect of all actions, claims, demands and expenses related to damage, injury or loss occurring to any person or property and which has arisen from the condition or use of the Goods or of any of the property referred to in clause 7 below to the extent that such damage, injury or loss shall have been occasioned partly or wholly by the act, omission, negligence or wilful default of the Customer, its servants or agents or by any breach by the Customer of its obligations to the Company under these Conditions.
7. PROPERTY OF COMPANY/SUPPLIER
All containers including but not limited to bottles, cases, kegs, cylinders and pallets in or upon which the Goods are supplied shall remain the property of the Company or of the Company’s supplier (as the case may be) and the Company shall be entitled to charge the Customer a deposit for the safekeeping thereof. If the Customer fails to return such items upon request or returns them in a damaged condition, any deposit may be forfeited in whole or in part and the Company shall in addition be entitled to charge the Customer the balance of the cost of any replacement thereof or repair thereto
8. RISK AND TITLE
8.1. Risk of loss of or damage to the Goods shall pass to the Customer on delivery (or in the case the Customer wrongfully failing to take delivery of the Goods the time when the Company has tendered delivery of the Goods) and the Customer shall insure the Goods from that time until ownership of and title to them passes to the Customer.
8.2. Despite earlier delivery of the Goods, ownership of and title to the Goods shall be retained by the Company until such time as the Customer shall have paid the Company for the Goods, together with the price of any other goods which are the subject of any other contract with the Company, and until that time the Customer acknowledges that it is in possession of the Goods solely as bailee in a fiduciary capacity for the Company. The Customer shall keep the Goods separate from goods which belong to the Customer and to third parties and ensure that such Goods are properly stored, protected (and insured) and clearly marked as the Company’s property.
8.3. If the Customer sells or otherwise disposes of the Goods it shall do so as agent for the Company and shall hold the entire proceeds of sale of such Goods whether tangible or intangible, including insurance proceeds, for and on behalf of the Company until the Company has received payment in full and shall keep all such amounts separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored and protected and insured. The Customer shall maintain records of the persons to whom it sells or disposes of such Goods and of the payments made by such persons for those Goods and will allow the Customer to inspect those records and the Goods themselves on request. The Customer shall be entitled to trace the proceeds of sale or otherwise of such Goods.
8.4. For the avoidance of doubt, the Goods and all other goods supplied to the Customer by the Company which are in the Customer’s possession shall be presumed to belong to the Company unless the Customer can prove otherwise.
8.5. Until ownership of and title to any Goods owned by the Company passes to the Customer (and providing the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Customer to deliver up such Goods to the Company and, if the Customer fails to do so immediately, to enter upon any premises owned or occupied by the Customer or any third party where such Goods are stored and repossess them. The Customer shall procure that any third party, which holds such Goods, shall permit the Company to take possession of them and shall indemnify the Company and keep the Company indemnified against any and all liability, which it may incur to such third party in connection with taking or attempting to take possession of them. The Company shall be entitled to use or dispose of such Goods as it wishes.
9. OWNERSHIP OF THE BRAND
9.1. The Customer acknowledges that the ownership of all rights (whether registered or unregistered) in the Brand shall remain at all times in the absolute ownership of the Company (or of the Company’s suppliers as applicable).
9.2. No right or licence is granted to the Customer in respect of the Brand, except the right to use or re-sell the Goods in the Customer’s ordinary course of business.
9.3. Any and all goodwill derived from the Customer’s use of the Brand shall accrue to the Company.
9.4. The Customer shall not apply for registration of or obtain any design right, trade mark or similar registerable right in the Brand.
9.5. The Customer undertakes at the request and expense of the Company to bring into effect or do all acts and execute all documents which may be necessary to confirm the title of the Company to the rights in the Brand whether in connection with any registration of that title to design right or trade mark or other similar right or otherwise.
10.1 The Company shall be entitled to terminate the Contract (or any other contract that the parties may have entered into for the supply of Goods) or suspend deliveries of the Goods forthwith by notice in writing if:
10.1.1 the Customer commits any material breach of any of these Conditions (whether in relation to this Contract or any other contract to which the parties have entered into) , persistently repeats a breach or commits any material breach and fails to remedy it within 14 days of receipt of notice of the breach requiring remedy of the same (and for the avoidance of doubt and without prejudice to any other rights the Company may have, failure to pay sums when due shall be considered a material breach);
10.1.2. the Customer becomes the subject of any voluntary arrangement, receivership, administration, liquidation or winding-up; or
10.1.3. the Customer is unable to pay its debts within the meaning of Section123 of the Insolvency Act 1986; or
10.1.4. the Customer becomes the subject of any distraint, execution or other similar process; or
10.1.5. the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing its own affairs or becomes a patient under any mental health legislation; or
10.1.6. the Customer ceases or threatens not to carry on business; or
10.1.7. the Company reasonably believes that any of the events mentioned in Conditions 10.1 to 10.6 above is about to occur and notifies the Customer accordingly; or
10.1.8 the Customer undergoes a change of Control,
10.2 The Company shall be entitled to terminate the Contract for any reason whatsoever by giving no less than 14 days’ written notice to the Customer.
10.3 Should the Contract be terminated under any, some or all of clause 10.1, the Company reserves the right to charge the Customer for any loss of profit as a direct result of having to terminate the Contract and for any surplus Goods which were due to be delivered to the Customer but for the termination and which the Company using its reasonable endeavours cannot resell.
11. MISTAKES AND INFORMATION
The Company reserves the right to amend any clerical, administrative or computer processing error which appears in the Company’s invoice, order acknowledgement, delivery note or other documentation issued by it.
No realisation, forbearance, delay or indulgence by either party in enforcing any of these Conditions or the granting of time by either party to the other shall prejudice, effect or restrict the rights and powers of the said party, nor shall any waiver by either party of any breach of these Conditions operate as a waiver of any subsequent or any continuing breach of these Conditions.
The headings in these Conditions are for convenience only and shall have no effect on the interpretation thereof.
14.1. The parties agree that they have not entered into the Contract in reliance on any promise, assurance, representation, warranty, details and/or specification (whether in writing or not) that is not expressly set out in the Contract. Nothing in the Contract shall exclude liability for any fraudulent statement and/or act made prior to the date of the Contract.
14.2. Each of the parties acknowledges and agrees that the only remedy available to it for breach of the Contract shall be for breach of contract under the terms of the Contract and it shall have no right of action against any other party in respect of any promise, assurance, representation, warranty, details and/or specification (whether in writing or not) that is not expressly set out in the Contract.
14.3. The Customer shall not assign, transfer, dispose of or sub contract (or purport to do any of the above in respect of) any of its rights or obligations under the Contract without the prior written consent of the Company.
14.4. The Company shall be entitled to perform any of its obligations under the Contract through any member within the same group of companies.
14.5. None of the terms and conditions of the Contract shall be enforceable by any person who is not a party to it. This shall not apply to any company within the same group of companies as the Company who the Company consents to being able to enforce the Contract in addition to the Company. The rights of any third party to enforce the Contract may be varied and/or extinguished by agreement between the parties without the consent of any third party.
These Conditions and the Contract shall be governed by and construed in accordance with English law and any disputes shall be referred to the Courts of England and Wales.