The customer’s attention
is drawn in particular to the provisions of clause 8.
1.
Interpretation
1.1
Definitions:
|
"Business Day":
|
a day other than a
Saturday, Sunday or public holiday in England, when banks in London are open
for business.
|
|
"Conditions":
|
the terms and conditions
set out in this document as amended from time to time in accordance with
clause 11.4.
|
|
"Contract":
“Contract Details”:
|
the contract between the
Supplier and the Customer for the sale and purchase of the Goods in
accordance with these Conditions.
the details set out
overleaf or otherwise in the Supplier’s acceptance of order.
|
|
"Customer":
|
the person or firm who
purchases the Goods from the Supplier.
|
|
"Delivery
Location":
|
has the meaning given in
clause 4.2.
|
|
"Force Majeure
Event":
|
an event, circumstance or
cause beyond a party’s reasonable control.
|
|
"Goods":
|
the goods (or any part of
them) set out in the Order.
|
|
"Order":
|
in the Customer’s purchase
order form, the Customer’s written acceptance of the Supplier’s quotation, or
overleaf, as the case may be.
|
|
"Specification":
|
any specification for the
Goods that is set out in the Contract Details or is otherwise agreed in
writing by the Customer and the Supplier.
|
|
"Supplier":
|
Brookhouse Hops Limited
(registered in England and Wales with company number 11308362).
|
1.2
Interpretation:
(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 and
permitted assigns.
(c) A
reference to legislation or a legislative provision is a reference to it as
amended or re-enacted. A reference to legislation or a legislative provision
includes all subordinate legislation made under that legislation or legislative
provision.
(d) Any
words following the terms including,
include, in particular, for example
or any similar expression shall be construed as illustrative and shall not
limit the sense of the words, description, definition, phrase or term preceding
those terms.
(e) A
reference to writing or written includes email.
2.
Basis of contract
2.1
These Conditions apply to the Contract to the exclusion
of any other terms that the Customer seeks to impose or incorporate, or which
are implied by law, trade custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Customer to
purchase the Goods in accordance with these Conditions. The Customer is
responsible for ensuring that the terms of the Order and any applicable
Specification are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the
Supplier issues a written acceptance of the Order, at which point the Contract
shall come into existence.
2.4
The Customer waives any right it might otherwise have
to rely on any term endorsed upon, delivered with or contained in any documents
of the Customer that is inconsistent with these Conditions.
2.5
Any samples, descriptive matter or advertising produced
by the Supplier and any descriptions or illustrations contained in the Supplier’s
catalogues or brochures are produced for the sole purpose of giving an
approximate idea of the Goods referred to in them. They shall not form part of
the Contract nor have any contractual force.
2.6
A quotation for the Goods given by the Supplier shall
not constitute an offer. A quotation shall only be valid for a period of [20]
Business Days from its date of issue.
3.
Goods
3.1
The Goods are described in the Order.
3.2
The Supplier reserves the right to amend the
Specification if required by any applicable statutory or regulatory
requirements.
4.
Delivery
4.1
The Supplier shall ensure that each
delivery of the Goods is accompanied by a delivery note that shows the date of
the Order, the contract number, the type and quantity of the Goods (including
the code number of the Goods, where applicable), special storage instructions
(if any) and, if the Goods are being delivered by instalments, the outstanding
balance of Goods remaining to be delivered.
4.2
The Supplier shall deliver the Goods to the location
set out in the Contract Details ("Delivery Location") at any time
after the Supplier notifies the Customer that the Goods are ready.
4.3
Delivery is completed on the completion of unloading of
the Goods at the Delivery Location.
4.4
Any dates quoted for delivery are approximate only, and
the time of delivery is not of the essence. The Supplier shall not be liable
for any delay in delivery of the 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 the
Goods.
4.5
If the Supplier fails to deliver the Goods, its
liability shall be limited to the costs and expenses incurred by the Customer
in obtaining replacement goods of similar description and quality in the
cheapest market available, less the price of the Goods. The Supplier shall have
no liability for any failure to deliver the Goods to the extent that such
failure 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 the Goods.
4.6
If the Customer fails to accept delivery of the Goods
within three Business Days of the Supplier notifying the Customer that the
Goods are ready, then, except where such failure or delay is caused by a Force
Majeure Event or the Supplier’s failure to comply with its obligations under
the Contract:
(a) delivery
of the Goods shall be deemed to have been completed at 9.00 am on the third
Business Day after the day on which the Supplier notified the Customer that the
Goods were ready; and
(b) the
Supplier shall store the Goods until delivery takes place, and charge the
Customer for all related costs and expenses (including insurance).
4.7
If ten Business Days after the day on which the
Supplier notified the Customer that the Goods were ready for delivery the
Customer has not  accepted actual
delivery of them, the Supplier may resell or otherwise dispose of part or all
of the Goods and, after deducting reasonable storage and selling costs, charge
the Customer for any shortfall below the price of the Goods.
4.8
If the Supplier delivers up to and including 1% more or
less than the quantity of Goods ordered the Customer may not reject them.
4.9
The Supplier may deliver the Goods by instalments,
which shall be invoiced and paid for separately. Any delay in delivery or
defect in an instalment shall not entitle the Customer to cancel any other
instalment.
5.
Quality
5.1
The Supplier warrants that on delivery the Goods will
meet generally accepted brewing quality standards.
5.2
The Customer shall conduct a full inspection of the
Goods after delivery and will immediately advise the Supplier in writing of any
allegedly non-conforming or defective Goods. Â
Claims for non-conforming or defective goods, which could have
reasonably been disclosed by inspection, must be made to the Supplier no later
than seven days after receipt by the Customer.Â
Evidence of any such claim must be preserved and made available to the
Supplier for inspection. Unless such claim is made in a timely manner in
accordance with these terms and conditions all goods shall be deemed conforming
and accepted. Claims for non-conforming or defective Goods do not include
damage to Goods occurring due to any applicable quarantine restrictions and
requirements. The Customer is responsible for reviewing, validating and
incurring all costs related to local or national government(s) agricultural
import and quarantine requirements and restrictions.
5.3
The Supplier’s only liability to the Customer if the Goods
fail to comply with the warranty set out in clause 5.1 is as set out in this
clause 5.
5.4
The terms implied by sections 13 to 15 of the Sale of
Goods Act 1979 are, to the fullest extent permitted by law, excluded from the
Contract.
5.5
The Supplier shall not be liable for the Goods’ failure
to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the
Customer makes any further use of such Goods after giving notice in accordance
with clause 5.2;
(b) the
defect arises because the Customer failed to follow the Supplier’s oral or
written instructions as to the storage, commissioning, installation, use and
maintenance of the Goods or (if there are none) good trade practice regarding
the same;
(c) the
defect arises as a result of wilful damage, negligence, or abnormal storage or
working conditions; or
(d) the
Goods differ from the Specification as a result of changes made to ensure they
comply with applicable statutory or regulatory requirements.
5.6
Except as provided in this clause 5, the Supplier shall have no liability to the
Customer in respect of the Goods’ failure to comply with the warranty set out
in clause 5.1.
5.7
These Conditions shall apply to any repaired or
replacement Goods supplied by the Supplier.
6.
Title and risk
6.1
The risk in the Goods shall pass to the Customer on
completion of delivery.
6.2
Title to the Goods shall not pass to the Customer until
the Supplier receives payment in full (in cash or cleared
funds) for the Goods.
6.3
Until title to the Goods has passed to the Customer,
the Customer shall:
(a) store
the Goods separately from all other goods held by the Customer so that they
remain readily identifiable as the Supplier’s property;
(b) not
remove, deface or obscure any identifying mark or packaging on or relating to
the Goods;
(c) maintain
the Goods in satisfactory condition and keep them insured against all risks for
their full price from the date of delivery;
(d) notify
the Supplier immediately if it becomes subject to any of the events listed in
clause 9.1(b) to clause 9.1(d); and
(e) give
the Supplier such information as the Supplier may reasonably require from time
to time relating to:
(i)
the Goods; and
(ii) the
ongoing financial position of the Customer.
6.4
At any time before title to the Goods passes to the
Customer, the Supplier may require the Customer to deliver
up all Goods in its possession 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.
7.
Price and payment
7.1
The price of the Goods shall be the price set out in
the Contract Details, or, if no price is quoted, the price set out in the
Supplier’s published price list in force as at the date of delivery.
7.2
The price of the Goods:
(a) excludes
amounts in respect of value added tax (VAT),
which the Customer shall additionally be liable to pay to the Supplier at the
prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes
the costs and charges of packaging, insurance and transport of the Goods, which
shall be invoiced to the Customer.
7.3
The Supplier may invoice the Customer for the Goods on
or at any time after the completion of delivery.
7.4
The Customer shall pay each invoice submitted by the
Supplier:
(a) within
30 days of the date of the invoice or in accordance with any credit terms
agreed by the Supplier and confirmed in writing to the Customer; and
(b) in
full and in cleared funds to a bank account nominated in writing by the
Supplier, and
time for payment shall be
of the essence of the Contract.
7.5
If the Customer fails to make a payment due to the
Supplier under the Contract by the due date, then, without limiting the
Supplier’s remedies under clause 9 (Termination), the Customer shall pay interest on
the overdue sum from the due date until payment of the overdue sum, whether
before or after judgment. Interest under this clause 7.55 will accrue each day at 4% a year above the Bank
of England’s base rate from time to time, but at 4% a year for any period when
that base rate is below 0%.
7.6
All amounts due under the Contract shall be paid in
full without any set-off, counterclaim, deduction or withholding (other than
any deduction or withholding of tax as required by law).
8.
Limitation of liability
8.1
The restrictions on liability in this clause 8 apply to every liability arising under or in
connection with the Contract including liability in contract, tort (including
negligence), misrepresentation, restitution or otherwise.
8.2
Nothing in the Contract limits any liability which
cannot legally be limited, including liability for:
(a) death
or personal injury caused by negligence;
(b) fraud
or fraudulent misrepresentation;
(c) breach
of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective
products under the Consumer Protection Act 1987.
8.3
Subject to clause 8.2, the Supplier’s total liability to the Customer
shall not exceed 1% of the total sums paid or payable by the Customer for the
purchase of the Goods.
8.4
Subject to clause 8.2, the following types of loss are wholly excluded:
(a) loss
of profits;
(b) loss
of sales or business;
(c) loss
of agreements or contracts;
(d) loss
of anticipated savings;
(e) loss
of use or corruption of software, data or information;
(f)
loss of or damage to goodwill; and
(g) indirect
or consequential loss.
8.5
This clause 8 shall survive termination of the Contract.
9.
Termination
9.1
Without limiting its other rights or remedies, the
Supplier may terminate this Contract with immediate effect by giving written
notice to the Customer if:
(a) the
Customer commits a material breach of any term of the Contract and (if such a
breach is remediable) fails to remedy that breach within 14 days of that party
being notified in writing to do so;
(b) the
Customer takes any step or action in connection with its entering
administration, provisional liquidation or any composition or arrangement with
its creditors (other than in relation to a solvent restructuring), obtaining a
moratorium, being wound up (whether voluntarily or by order of the court,
unless for the purpose of a solvent restructuring), having a receiver appointed
to any of its assets or ceasing to carry on business or, if the step or action
is taken in another jurisdiction, in connection with any analogous procedure in
the relevant jurisdiction;
(c) the
Customer suspends, threatens to suspend, ceases or threatens to cease to carry
on all or a substantial part of its business; or
(d) the
Customer’s financial position deteriorates so far as to reasonably justify the
opinion that its ability to give effect to the terms of the Contract is in
jeopardy.
9.2
Without limiting its other rights or remedies, the
Supplier may suspend provision of the Goods under the Contract or any other
contract between the Customer and the Supplier if the Customer becomes subject
to any of the events listed in clause 9.1(b) to clause 9.1(d), or the Supplier reasonably believes that the
Customer is about to become subject to any of them, or if the Customer fails to
pay any amount due under this Contract on the due date for payment.
9.3
Without limiting its other rights or remedies, the
Supplier may terminate the Contract with immediate effect by giving written
notice to the Customer if the Customer fails to pay any amount due under the
Contract on the due date for payment.
9.4
On termination of the Contract for any reason the
Customer shall immediately pay to the Supplier all of the Supplier’s outstanding
unpaid invoices and interest and, in respect of Goods supplied but for which no
invoice has been submitted, the Supplier shall submit an invoice, which shall
be payable by the Customer immediately on receipt.
9.5
Termination of the Contract, however arising, shall not
affect any of the parties’ rights and remedies that have accrued as at
termination, including the right to claim damages in respect of any breach of
the Contract which existed at or before the date of termination.
9.6
Any provision of the Contract that expressly or by
implication is intended to come into or continue in force on or after
termination of the Contract shall remain in full force and effect.
10.
Force majeure
Neither party shall be in
breach of the Contract nor liable for delay in performing, or failure to
perform, any of its obligations under the Contract if such delay or failure
result from a Force Majeure Event. In such circumstances the time for
performance shall be extended by a period equivalent to the period during which
performance of the obligation has been delayed or failed to be performed. If
the period of delay or non-performance continues for six weeks, the party not
affected may terminate the Contract by giving 14 days’ written notice to the
affected party.
11.
General
11.1
Assignment and
other dealings.
(a) The
Supplier may at any time assign, transfer, mortgage, charge, subcontract,
delegate, declare a trust over or deal in any other manner with all or any of
its rights or obligations under the Contract.
(b) The
Customer may not assign, transfer, mortgage, charge, subcontract, delegate,
declare a trust over or deal in any other manner with any or all of its rights
or obligations under the Contract without the prior written consent of the
Supplier.
11.2
Confidentiality.
(a) Each
party undertakes that it shall not at any time during the Contract and for a
period of two years after termination of the Contract, disclose to any person
any confidential information concerning the business, affairs, customers,
clients or suppliers of the other party, except as permitted by clause 11.2(b).
(b) Each
party may disclose the other party’s confidential information:
(i)
to its employees, officers, representatives or advisers
who need to know such information for the purposes of exercising the party’s
rights or carrying out its obligations under the Contract. Each party shall
ensure that its employees, officers, representatives or advisers to whom it
discloses the other party’s confidential information comply with this clause 11.2; and
(ii) as
may be required by law, a court of competent jurisdiction or any governmental
or regulatory authority.
(c) Neither
party shall use the other party’s confidential information for any purpose
other than to exercise its rights and perform its obligations under or in
connection with the Contract.
11.3
Entire
agreement.
(a) This
Contract constitutes the entire agreement between the parties and supersedes
and extinguishes all previous agreements, promises, assurances, warranties,
representations and understandings between them, whether written or oral,
relating to its subject matter.
(b) Each
party agrees that it shall have no remedies in respect of any statement,
representation, assurance or warranty (whether made innocently or negligently)
that is not set out in the Contract. Each party agrees that it shall have no
claim for innocent or negligent misrepresentation or negligent misstatement
based on any statement in the Contract.
11.4
Variation.
No variation of this Contract shall be effective unless it is in writing and
signed by the parties (or their authorised representatives).
11.5
Waiver. 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 prevent or restrict the further exercise of that or any
other right or remedy. No single or partial exercise of such right or remedy
shall prevent or restrict the further exercise of that or any other right or
remedy.
11.6
Severance.
If any provision or part-provision of the Contract is or becomes invalid,
illegal or unenforceable, it shall be deemed deleted, but that shall not affect
the validity and enforceability of the rest of the Contract. If any provision
of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to
agree a replacement provision that, to the greatest extent possible, achieves
the intended commercial result of the original provision.
11.7
Notices.
(a) Any
notice given to a party under or in connection with the Contract shall be in
writing and shall be:
(i)
delivered by hand or by pre-paid first-class post or
other next working day delivery service at its registered office (if a company)
or its principal place of business (in any other case); or
(ii) sent
by email to the address specified in the Contract Details.
(b) Any
notice ] shall be deemed to have been received:
(i)
if delivered by hand, on signature of a delivery
receipt;]
(ii) if
sent by pre-paid first-class post or other next working day delivery service,
at 9.00 am on the second Business Day after posting; and
(iii) if
sent by email, at the time of transmission, or, if this time falls outside
business hours in the place of receipt, when business hours resume. In this
clause (iii), business hours means 9.00am to 5.00pm Monday to
Friday on a day that is not a public holiday in the place of receipt.
(c) This
clause does not apply to the service of any proceedings or other documents in
any legal action or, where applicable, any arbitration or other method of dispute
resolution.
11.8
Third party
rights.
(a) Unless
it expressly states otherwise, the Contract does not give rise to any rights
under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of
the Contract.
(b) The
rights of the parties to rescind or vary the Contract are not subject to the
consent of any other person.
11.9
Governing law. The
Contract, and any dispute or claim (including non-contractual disputes or
claims) arising out of or in connection with it or its subject matter or
formation, shall be governed by and construed in accordance with the law of
England and Wales.
11.10 Jurisdiction. Each party irrevocably
agrees that the courts of England and Wales shall have exclusive jurisdiction
to settle any dispute or claim (including non-contractual disputes or claims)
arising out of or in connection with this Contract or its subject matter or
formation.
