Terms & Conditions
A.1 In These conditions:-
"Buyer" means the legal person whose behalf the Order of Goods is accepted by the Seller.
"Goods" means the Goods (including any installment of the Goods) which the Seller is to supply in accordance with these Conditions.
"Seller" means The Hurns Beer Company Ltd.
"Conditions" means the standard Terms and Conditions of Sale set out in this document.
"Contract" means the Contract for the purchase and sales of the Goods.
An "order" means the Order given orally or in writing using an acceptable form of communication such as telephone, letter, facsimile, telex and in both cases shall be given by an authorized representative of the Buyer. In the absence of manifest evidence to the contrary, the Seller shall be entitled to assume that the person giving the Order is an authorized reprehensive of the Buyer.
A.2 Any reference in these Conditions, to any provisions of a statute shall be construed as a reference to that provision as amended, re-enacted to extended at the relevant time.
A.3 The headings in these Conditions are for convenience only and shall not affect in their interpretation.
B. Basis of the Sale
B.1 The seller sells and the Buyer buys the Goods in accordance with the Order from the Buyer accepted by the Seller subject to these Conditions which shall govern the Contract to the exclusion of any other Terms and Conditions.
B.2 No variation to these Conditions shall be binding unless agreed in writing to authorized representatives of the Buyer and Seller.
B.3 All accounts that are still outstanding 60 days after the due date for payment will incur a 5% interest charge above base rate.
If the buyer is a consumer in terms of Section 12 of the Unfair Contract Terms Act then save where the contract is for international sales of Goods nothing herein shall restrict or affect statutory rights of the buyer.
Terms and Conditions - Supply of Goods
1.1Payment due on the Friday of the fourth week following delivery unless otherwise agreed in writing.
1.2 If the Buyer fails to make payment in accordance with this clause then without prejudice to any other right or remedy to which the Seller may be entitled, the seller may:-
1.2.1 Cancel the Contract or suspend any further deliveries to the Buyer under this Contract or any other Contract.
1.2.2 Appropriate any payment to such Goods (or any Goods supplied under any other Contract) as the seller may think fit.
1.2.3 Require that any Goods and services sold or supplied while any payment is in arrears shall be paid for in cash or bankers draft on or before delivery.
1.2.4 Charge the Buyer interest on the amount outstanding at the rate of 4% per annum above the base rate of Lloyds Bank plc in force from time to time and compounded daily or such other rate as may be notified in writing by Hurns until such time as payment is made in full.
1.3 Payment by the due date is an express term of this contract which save as provided for in the above clause, shall govern all deliveries made by the Seller to the Buyer. Unless payment is required before delivery, no commitment to pay arises until delivery has been made.
2.1 Unless otherwise stated in writing by the Seller, all prices quoted are exclusive of VAT and any charges for delivery or carriage and shall be the prices ruling on the date of dispatch. The seller shall use every endeavor to provide current price lists and give the Buyer advance notice of alterations in prices of Goods or delivery charges made by the Seller. However all prices are subject to alteration without notice.
3.1 Unless otherwise agreed in writing, the Seller shall determine method, date and time of delivery. The Seller shall not be obliged to make delivery outside the United Kingdom.
3.2 here delivery is not effected by the Seller or the Seller agrees with the Buyer that the Buyer shall collect the goods the Buyer shall be responsible for the off-loading/uplifting and taking of delivery of the goods.
3.3 Every delivery imposes a £3 fuel surcharge.
3.4 Any dates quoted for delivery of the Goods are approximate only and the seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
3.5 If the Buyer fails to take delivery (otherwise than by reason of any cause beyond the Buyers reasonable control) then without prejudice to any other right or remedy available to the Seller, the Seller may:-
3.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) or storage; or
3.5.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
4. Acknowledgement of Receipt
4.1 The Buyer must examine the Goods on delivery to the designated premises, sign the appropriate delivery note and note any damage, shortage or loss on the same.
5.Complaints/Damage/Shortage or Loss in Transit
5.1 No claim for damage or shortages will be considered by the Seller unless so noted on the delivery note or subject to written notice (by post, fax or telex) sent within 24 hours after delivery unless the Buyer can show reasonable grounds why such damage or shortages were not capable of discovery within the said time period. For the purpose of this Contract:-
"Damage" shall mean such reduction in quality of the Goods as may on reasonable commercial evaluation materially diminish the resale value of the Goods delivered.
"Shortage" shall mean the total volume of Goods delivered (howsoever made up) being less than that shown on the delivery note.
5.2 Alleged damaged goods shall be held by the Buyer without cost to the Seller awaiting Sellers instructions and the Buyer shall allow the Sellers representative full access at any time during normal working hours and prior to receipt of the said instructions to examine the same.
5.3 Any product considered to be out of condition shall be notified by the Buyer immediately in accordance with procedures the Seller shall from time to time specify.
5.4 In the case of alleged damage or shortages, no deduction may be made by the Buyer against any invoice except on specific written authority from the Seller.
6.1 For the purposes of these conditions "containers" includes all returnable packages of any nature, including but not limited to kegs, bottles, casks, crates, pallets and cases. For the avoidance of doubt this clause shall not extend to CO2 and/or mixed gas bottles and cylinders of whatever size.
6.2.1 All containers, shall comply with the Brewers and Licensed Retailers Association Code of Practice on Container Contents (large and small pack codes) dated November 1997 or as subsequently amended.
6.2.2 All containers, cases, pallets, returnable bottles ("the containers") dispense heads, taps, cellar connectors, cellar cooling equipment, refrigeration equipment, wine coolers, bottle cooling shelves or cabinets signs and all other equipment of a similar nature ("the equipment") shall AT ALL TIMES remain the exclusive property of the seller but shall be at the Buyer’s risk with regard to loss, damage or theft. The Buyer shall return the same to the Seller on request and in particular when used and/or emptied, and shall not in any way transfer sell or otherwise deal or purport to deal with the same. The Buyer shall at all times be adequately insured against loss damage or theft of, or damage to both containers and equipment so as to indemnify the Seller as principal.
6.2.3 The Seller may levy a specific deposit charge upon the Buyer in respect of certain containers, such charge to be notified by the Seller to the Buyer from time to time. Credit against such deposit will be given for the return in good condition of the same. In respect of containers for which no deposit is charged the Seller reserves the right to levy reasonable charge upon the Buyer if the same are not returned within such period as the Seller may specify, or are not returned in good condition.
6.2.4 Containers are vessels to carry beer and are not measures, although care is taken to ensure that they contain not less than their reputed quantity.
6.2.5 The Buyer grants the seller a right of access to the Buyers premises at reasonable times and intervals and after giving reasonable notice should the Seller wish to conduct a census of the containers or equipment then in the possession of the Buyer.
7.1 The Buyer is required to ensure that all empty containers, cases, pallets and returnable bottles supplied by the Seller are made available for collection as soon as possible after usage and should a knowledge the collection of such returns in the relevant section of the appropriate delivery note.
8. Resale of goods
8.1 The buyer undertakes to acquaint itself with the requirement s of all governmental and/or competent bodies relating to sale and storage of products supplied by the seller. In particular the Buyer shall offer Goods for sale strictly in accordance with any instructions of the Seller (whether so marked on the Goods or not) and in accordance with any regulations of competent bodies. No credit shall be given by the seller for Goods returned by the Buyer after the latest date for sale.
8.2 Goods are supplied on condition that they will only be re sold in or from bottles or other containers with packaging and labeling exactly as supplied by the Seller.
8.3 Draught beers or other beverages supplied by the Seller shall be stored and sold only by means of equipment supplied by the Seller and used strictly in accordance with the Sellers instructions. The buyer shall comply with all relevant rules and regulations (statutory or otherwise) covering use and maintenance of such equipment.
8.4 The Buyer shall indemnify the Seller in respect of any breach of the terms of this clause 9 and the Seller shall have no responsibility for any losses or damages (whether direct, indirect or consequential) caused by thereby.
8.5 The equipment aforementioned will remain the property of the Seller at all times with the Buyer acting as bailee. The Buyer must not sell, assign pledge, charge, underlet or in any other way part with possession of such equipment or unless agreed in writing remove it from the address shown overleaf. The Buyer hereby grants to the Seller an irrevocable license to enter onto the premises to re-possess the equipment but in the absence of such event, shall be responsible for all loses and/or damage to the said equipment on a full indemnity basis and shall take out adequate insurance to cover loss or damage.
8.6 Where appropriate and upon request by the Seller, the Buyer shall enter into and an Agreement with the Seller for the provision by the Seller of Equipment to be decided upon by the Seller to facilitate the proper storage, cooling and dispense of goods.
9. Warranties and Liabilities
9.1 The Seller’s liability hereunder shall be limited to replacing defective, damaged or non-delivered Goods and the Seller shall have no liability for any loss or damage direct, indirect or consequential caused thereby. Save as aforesaid all warranties and Conditions expressed or implied, statutory or otherwise, except the implied Conditions as to title in Section 12 of the Sale of Goods Act 1979 are hereby expressly excluded.
9.2 The Customer hereby warrants and represents to the supplier that he the Customer is not bound by and contractual or other trading conditions which would restrict or preventing him from lawfully purchasing the Goods from the supplies and/or that the Goods are not intended by the Customer to be sold supplied or offered for sale in circumstances in which such sale or supply is in breach of any contractual or other trading in relationship with a third party.
10. Force Majeure
10.1 The Seller shall not be liable for consequence of any failure to fulfill any terms of any transaction if fulfillment has been delayed, hindered or prevented by; fire, accident, strike, lock-out or any other circumstances which are not directly within its control, nor shall any such failure entitle the Buyer to avoid transaction. If by reason of any such circumstances the Seller is able to fulfill only part of its total commitments, the Seller shall be entitled to allocate available supplies at its sole discretion.
10.2 If by reason of any circumstances set out in Clause 10.1 above the Seller is of the opinion that supply and/or delivery of Goods is rendered impracticable the Seller shall be at liberty to terminate the Contract by written notice to the Buyer whereupon the Buyer shall pay any sums due to the Seller for any Goods already delivered.
10.3 The Seller may, following request by the Buyer, waive obligations of the buyer to return Goods by the Relevant date under 8.1 or to use equipment supplied by the Seller under Clause 8.3 and 9.1 where failure to meet such obligations is caused by circumstances beyond the control of the Buyer.
11. Retention of Title and Risk
11.1 Where the Seller uses vehicles of his own nomination for delivery, risk should pass to the Buyer on completion of delivery at the Buyers nominated address. Where delivery is effected by other means, risk shall pass when Goods are delivered by the Seller to the Buyer’s nominated carrier. In the event the Buyer wrongfully fails to take delivery of Goods, risk shall pass at the time the Seller has tendered delivery of the Goods.
11.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title in the Goods shall not pass to the buyer until the Seller has received in cash or cleared funds payment in full or the price for the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
11.3 Until title in the Goods has passed:-
A) The Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and will at his own expense keep the goods safe, separate from those of the Buyer and third parties properly stored and protected, insured against customary commercial risks and identified as the Sellers property.
B) The Buyer shall return the goods to the Seller on demand and the Seller shall without prejudice to any other right be entitled to enter upon the property where the Goods are stored and repossess and remove the same. The Buyer hereby grants the Seller an irrevocable license to enter any premises of the Buyer for the said purposes.
C) Until title in the goods passes to the Buyer or until the Seller shall re-process the same, the Buyer shall be entitled to re-sell or use the Goods in the ordinary course of its business but shall account to the seller for the proceeds of sale of such Goods, whether tangible or intangible, including insurance proceeds and shall keep all such proceeds separate form any monies or property of the Buyer and third parties and in the case of tangible proceeds properly stored, protected and insured.
D) Prior to title passing the Buyer shall be at the liberty top sell the Goods in the ordinary course of business but the Buyer shall hold in trust for the Seller absolutely all proceeds of any such sale and the benefit of any contract of sale and shall account to the Seller for such proceeds/benefit.
12. Loss Leading
12.1 Any rebate discount or allowance made by the Seller to the Buyer in connection with the sale of Goods to the Buyer shall be used by the Buyer solely for the purpose for which the discount rebate or allowance was originally made by the seller.
12.2 The Seller may withhold supplies of Goods from the Buyer if the Seller has reasonable cause to believe that within the previous twelve months the Buyer (or the Buyer’s customers where relevant) have been using as loss leaders any Goods of the same or a similar description as the Goods obtained from the seller whether the Goods used as loss leaders were obtained from the Seller or not.
12.3 Without prejudice to the Sellers rights to withhold supplies of Goods in the circumstances set out above, the Seller may also withhold payment of the whole or part of any discount rebate or allowance agreed in respect of purchases by the Buyer during the year in which loss leading is reasonably believed to have taken place.
Proper Law of Contract
This agreement shall be constructed and governed in all respects and in accordance with the laws prevailing in the country in which it is made and subject to the jurisdiction of the appropriate Courts of that Country.
In the case of product being returned due to alleged damage, shortage or recognized quality problem, the description of the returned product will be indicated on this note. The customer must sign this note confirming the following statement.
"I hereby declare that the beer was not, while in my possession, removed from the vessels in which it was received; that it accidently became spoiled or otherwise unfit for use; that no other substance other than fining for the purpose of clarification was added to the beer while in my possession and that no part of the beer returned by me consisted of waste beer or bottoms (sediments) other than bottoms forming naturally in the beer cask in which it was returned".