CONDITIONS OF SALE OF GOODS
THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 6
In these Conditions the following words shall have the following meanings:
“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 9.4
“Contract” the contract between CBB and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” the company, firm, body or person detailed in the Customer Application Form.
“Customer Application Form” the CBB customer account opening form from time to time.
“Data Protection Legislation” the UK GDPR and Data Protection Act 1998.
“Delivery” CBB making the Goods available for collection, or delivery of the Goods by CBB or a third party on its behalf and ‘Delivered’ shall be construed accordingly
“Goods” the drink products supplied by CBB which are the subject matter of the Order.
“CBB” Cross Bay Brewery Ltd. whose registered office is at 3 Newgate, White Lund Industrial Estate, Morecambe, LA3 3PT and any company associated with CBB through which the Goods are sold.
“Order” the purchase order in respect of the Goods whether it be a telephone order or otherwise.
Basis of contract
- 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.
- 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 are complete and accurate.
- The Order shall only be deemed to be accepted when CBB issues a written acceptance of the Order, at which point the Contract shall come into existence.
- Any samples, drawings, descriptive matter or advertising produced by CBB and any descriptions or illustrations contained in CBB’s catalogues or brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods referred to in or on them. They shall not form part of the Contract nor have any contractual force.
- CBB’s quotations are not binding on CBB and the Contract will only come into being upon acceptance by CBB of the Order or (if earlier) the Delivery of the Goods, and the following conditions shall be deemed to be incorporated in the Contract.
2.1 CBB shall provide a delivery note with each Order of the Goods that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable).
2.2 CBB shall either
(a) deliver the Goods to the location set out in the Order, or such other location as the parties may agree (Delivery Location) at any time after CBB notifies the Customer that the Goods are ready: or
(b) make available the Goods for collection from CBB’s premises at 3 Newgate, White Lund Industrial Estate, Morecambe, LA3 3PT or such other location as may be advised by CBB prior to delivery (Delivery Location) within three Business Days of CBB notifying the Customer that the Goods are ready
whichever is agreed between the parties at the time of the Order.
2.3 Delivery is completed on the completion of unloading, where delivery is in accordance with clause 2.2 (a) or loading, where delivery is in accordance with clause 2.2 (b), of the Goods at the Delivery Location.
2.4 Any dates quoted for Delivery by CBB are approximate only, and the time of Delivery is not of the essence. CBB 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 CBB with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
2.5 Where CBB is responsible for arranging delivery and Goods are lost or damaged in transit, CBB will replace, free of charge the Goods lost or damaged in transit provided the Customer:
(a) inspects the Goods immediately in detail at the time of Delivery and notes any damage, shortages of Goods, short dated Goods or other loss in detail on the carrier’s delivery note and signs the delivery note accordingly;
(b) gives written notice to CBB within seven (7) days of non-delivery, or within five (5) days of the Delivery of the Goods in any other case; and
(c) where the Goods are transported by an independent freight carrier, complies in all respects with the freight carrier’s conditions of carriage including notifying claims for loss or damage in transit.
2.6 In any event CBB will not accept claims of any nature in relation to the Goods made outside the periods detailed at clause 2.5 (b).
2.7 If the Customer fails to take or accept delivery of the Goods, as applicable, within three (3) Business Days of CBB notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or CBB’s failure to comply with its obligations under the Contract in respect of the Goods:
(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 CBB notified the Customer that the Goods were ready; and
(b) CBB shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
2.8 If ten (10) Business Days after the day on which CBB notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, CBB may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the price of the Goods.
3.1 The risk in the Goods shall pass to the Customer on completion of Delivery.
3.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) CBB receiving payment in full (in cash or cleared funds) for the Goods; and
(b) the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 3.4.
3.3 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 CBB’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 CBB immediately if it becomes subject to any of the events listed in clause 7.1 (b) to clause 7.1 (d) inlcusive.
3.4 Subject to clause 3.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before CBB receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as CBB’s agent; and
(b) title to the Goods shall pass from CBB to the Customer immediately before the time at which resale by the Customer occurs.
3.5 At any time before title to the Goods passes to the Customer, CBB may:
(a) by notice in writing, terminate the Customer’s right under clause 3.4 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product 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.
4.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in CBB’s published price list in force as at the date of Delivery.
4.2 CBB may, by giving notice to the Customer at any time up to 5 (five) Business Days 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 CBB’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 CBB adequate or accurate information or instructions.
4.3 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to CBB at the prevailing rate, subject to the receipt of a valid VAT invoice.
4.4 Payment must be made in cleared funds at the time of the Order unless CBB has agreed to give credit in writing, in which case the Customer shall pay the full invoice price in accordance with clause 4.6 below.
4.5 The time of payment of the price shall be the essence of the Contract. All payments shall be made without deduction or set-off. CBB shall be entitled to off-set any amount owed by the Customer to CBB against any amount owed by CBB to the Customer.
4.6 Save where lengthier credit terms have been approved in writing and save only where CBB has expressly waived in writing, its right to advance payment pursuant to clause 4.4, the Customer shall pay each invoice submitted by CBB:
(a) within 30 (thirty) days’ of the date of the invoice, or in accordance with any credit terms agreed by CBB and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by CBB
CBB reserves the right to remove credit at any time on 3 (three) Business Days’ written notice.
4.7 If the Customer fails to make a payment due to CBB under the Contract by the due date, then 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 4.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time.
4.8 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).
- PACKAGING AND CASKS
5.1 Unless otherwise specified, kegs, packing cases and packing materials other than casks and pallets will be included in the price. Where not returnable, the Customer will dispose of all packaging in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.
5.2 The Customer will keep casks and pallets in good condition until they are collected or returned to CBB, at CBB’s expense. Casks and pallets shall at all times remain the sole property of CBB, and the Customer shall not dispose of them. Should the Customer lose or damage any casks or pallets, by any cause, CBB shall be entitled to charge the Customer the cost of replacing such lost or damaged item(s). The Customer shall return, or make available for collection, the pallets and the casks when empty, or in any event, within 3 (three) months’ of Delivery.
5.3 The casks and pallets shall be used solely in relation to the Goods supplied by CBB. CBB shall not be liable for any loss or damage caused by the casks, kegs or pallets once Delivered, and the Customer shall ensure it has properly stored and handled the Goods as may be directed by CBB, or in accordance with standard industry practice.
5.4 The Customer shall ensure that it stores the Goods in a cold, dry place, away from direct sunlight, and in the optimum conditions for the Goods in question, whether in bottle, can, cask or keg. It is the Customer’s responsibility to ensure that the Goods are rotated such that the oldest Goods are sold first, and that they are sold before their best before date. Any cask or keg Goods shall only be sold, once opened, for the amount of time recommended by CBB, or in accordance with standard industry practice.
5.5 All labels, trade marks, logos, confidential records and other information supplied by CBB are supplied on the express understanding that all ownership, copyright and other intellectual property rights are reserved to CBB and the Customer shall not (without the prior written consent of CBB):
(i) alter or make any addition to the labelling or packaging of the Goods; or
(ii) challenge CBB’s right to any such intellectual property or attempt to claim any rights over such intellectual property (including but not limited to directly or indirectly making applications to register intellectual property rights which the Customer knows belong to CBB).
5.6 The Customer shall promptly and fully notify CBB of any actual, threatened or suspected infringement of any intellectual property of CBB which comes to the Customer’s notice and shall do all such things as may be reasonably required to assist CBB in taking or resisting any proceedings in relation to any such infringement claim.
- LIMIT OF RESPONSIBILITY
The Customer’s attention is in particular drawn to the provisions of this clause 6.
6.1 Nothing in this clause 6, or otherwise in these Conditions, excludes or limits CBB’s liability for death or personal injury caused by its negligence or for fraudulent misrepresentation on the part of CBB.
6.2 Subject to clause 6.3, CBB warrants that on Delivery the Goods shall:
(a) conform in all material respects with their description; and
(b) be fit for human consumption.
6.3 CBB shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.2 in the event that:
(a) the defect arises because the Customer failed to follow the CBB’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; and/or
(b) any failure of the Customer to comply with clauses 5.3 and 5.4.
6.4 Subject to clause 6.1 and save as otherwise agreed by CBB, CBB excludes all conditions and warranties (express and implied, statutory or otherwise) to the fullest extent permitted in law.
6.5 Subject to clause 6.1, the Customer’s remedies in respect of any claim in relation to the Goods (whether or not involving negligence on the part of CBB) shall, in all cases, be limited to replacement or refund of the purchase price and then such liability on the part of CBB is CONDITIONAL UPON the Customer having complied with the requirements set out at clause 4 above (payment).
6.6 Subject to clause 6.1, CBB shall not in any circumstances be liable for: (i) any loss of profit or loss of bargain or loss of account; (ii) any indirect, special or consequential loss or damage (whether loss of business, loss of opportunity, loss of management time, depletion of goodwill or otherwise); (iii) costs (including legal costs); (iv) expenses (including legal expenses); or (v) other liabilities or claims for consequential compensation whatsoever (and howsoever caused), which (in any of the above cases) arises out of or in connection with the Contract.
6.7 A claim in respect of any defect or failure to comply in respect of any Delivery or any part of it shall not entitle the Customer to cancel or refuse delivery of or payment for any other Order or Delivery.
6.8 Subject to clause 6.1, the maximum amount of CBB’s liability (whether in contract, tort (including negligence), or restitution or for breach of statutory duty or misrepresentation or otherwise) in respect of each Order shall be limited to the price due from the Customer in respect of that Order (excluding any carriage and administration charges, any duty and any tax).
7.1 CBB may terminate a Contract immediately on giving notice to the Customer if:
(a) the Customer commits any material or persistent breach of any of the terms in this Contract;
(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.
and for the avoidance of doubt, upon so terminating the Contract, CBB may, without liability or prejudice to its other rights and remedies under these Conditions, stop the provision of all Goods in transit and suspend further deliveries.
- FORCE MAJEURE
8.1 CBB’s obligations shall be suspended, and it shall not be liable to the Customer in any circumstances for the consequences of any delay in Delivery or performance or failure to deliver or perform, if the duration of the delay is not substantial, or if the delay or failure is due to an act of God, fire, flood, storm, inclement or exceptional weather conditions, industrial action (whether at CBB’s premises or elsewhere), riot, civil commotion, pandemic or epidemic, hostilities, shortage of labour, materials, loss of power or other supplies, embargoes, late delivery or performance or non-delivery or non-performance by CBB or subcontractors, terrorism, explosions, governmental order or intervention (whether or not having the force of law) or any other cause whatever beyond CBB’s control or of an unexpected or exceptional nature (“Force Majeure Event”).
8.2 CBB, if affected by an event referred to in clause 8.1 above shall inform the Customer of the occurrence of a Force Majeure Event.
9.1 Assignment and other dealings.
(a) CBB 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 CBB.
(a) Each party undertakes that it shall not at any time disclose to any third party any confidential information concerning the business, affairs, customers, clients, prices or any other confidential information of the other party, except as permitted by clause 9.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors 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, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) The obligation of confidentiality in this clause 9.2(a), shall not apply to any information in the public domain, other than where such information is in the public domain due to a breach by a party of clause 9.2(a).
(d) 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.
9.3 Entire agreement.
(a) The 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.
9.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.5 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.
9.6 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 9.6 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.
(a) Any notice or other communication to be given under these conditions must be in writing and may be delivered or sent by prepaid first class letter or by email to an address previously provided by CBB.
(b) Any notice or document shall be deemed served: if sent by post, 2 (two) Business Days after postal collection; and, if sent by e-mail, at the time of transmission provided the e-mail is retained for proof PROVIDING THAT if deemed receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 9am on the next Business Day.
9.8 Third party rights.
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.
9.9 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.
9.10 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 the Contract or its subject matter or formation.
- DATA PROTECTION
10.1 Each of the parties warrant that they will comply with all applicable Data Protection Legislation at all times. In particular, the Customer warrants that it will comply with the Data Protection Legislation if sharing personal data (as defined in the Data Protection Legislation) with CBB.
10.3 CBB may also transfer information or personal data relating to the Customer to its accountants, bankers or other agencies for the following purposes: (a) obtaining credit insurance; (b) making credit reference agency searches; (c) credit control (d) assessment and analysis (including credit scoring). CBB will provide Customers with details of our bankers and of any credit reference agencies used upon request.