Terms and Conditions of Sale
In these terms and conditions the Company means DB Breweries Limited that supplies goods or services to the purchaser of such goods or services ("Purchaser"). These terms and conditions govern the relationship between the Company and the Purchaser, notwithstanding anything that may be stated to the contrary in the Purchaser's enquiries or on the Purchaser's orders or otherwise by the Purchaser. Without limiting the generality of the foregoing, the ordering of goods or services by the Purchaser will be deemed to be acceptance by the Purchaser of these terms and conditions.
1. The Purchaser shall pay the price indicated on the invoice, or other document issued by the Company.
2. The price payable under Clause 1 shall not include Goods and Services Tax and any other taxes, duties, or levies payable in respect of the supply of goods or services as at the date of the invoice unless otherwise stated.
3. The Company may alter prices without notice and the purchase price of goods or services may be different from the price quoted or the price current when the goods or services are ordered.
4. The Purchaser shall make all payments due to the Company in full without any deductions, whether by way of set off, counter-claim, or any other equitable or legal claim.
TERMS OF PAYMENT
5. The Purchaser shall pay all amounts due to the Company by the due date. Unless otherwise specified by the Company in writing, the due date shall be seven (7) days from the date a statement for the amount owing is issued by the Company.
6. In the event that:
(a) any amount payable by the Purchaser to the Company is overdue. or the Purchaser fails to meet any other obligation to the Company (whether in relation to the sale of goods of otherwise), or in the Company's opinion the Purchaser is likely to be unable to meet its payment or other obligations to the Company; or
(b) the Purchaser commits any act of bankruptcy (as defined under the Insolvency Act), becomes insolvent, has a receiver appointed in respect of all or some of its assets. makes or is likely to make an arrangement with its creditors, has a liquidator (provisional or otherwise) appointed, or is placed under statutory or official management; or
(c) the Purchaser, if a company, fails to provide the Company with a certificate of solvency (as defined by the Companies Act 1993) within 10 days of receiving a written demand therefore from the Company or is otherwise presumed to be unable to pay its debts in accordance with section 287 of the Companies Act 1993; or
(d) the ownership or effective control of the Purchaser or the Purchaser's business is transferred or the nature of the Purchaser's business is materially altered; or
(e) any of these terms and conditions is breached by the Purchaser, then:
(aa) the Company shall be entitled to cancel all or any part of any contract or contracts with the Purchaser which remains unperformed, in addition to and without prejudice to its other remedies;
(bb) all amounts outstanding under any contract with the Company shall, whether or not due for payment, immediately become due and payable: and
(cc) the Company shall be entitled to reclaim any of its goods in the Purchaser's possession or control and to dispose of them for its own benefit, and for that purpose the Company shall be entitled, without notice, to enter directly or by its agents on any premises where it believes goods which it has supplied may be stored, without in any way being liable to any person, and the Purchaser shall fully indemnify the Company against any claims or costs arising from any action taken by the Company under this subclause.
7. The Purchaser shall upon demand pay the Company interest, at the rate which is three (3) percent above the highest overdraft rate charged by the Company's principal bank for commercial loans in excess of $100,000 as at the due date in respect of all of the Purchaser's indebtedness, which is overdue. Such interest shall accrue on a daily basis from the date when payment is due until the date when payment is actually received and the Purchaser shall be liable to pay all expenses and legal costs of the Company as between solicitor and client in relation to obtaining remedy of such failure to pay. The default interest payable under this clause is charged by way of damages for failure to pay and does not imply the granting of, or an extension of, credit by the Company to the Purchaser.
8. Notwithstanding the provisions for the payment of interest contained in clause 7, (which is intended to cover the cost of carrying the outstanding amount in the accounts of the Company), if the Purchaser fails to make payment of the amount due in accordance with clause 5, then the Customer shall pay an administration fee equivalent to 2.5% of the amount due, payable immediately. Such a fee is intended to cover the costs of administering an account in default, and liquidated damages and the Purchaser hereby acknowledges that the fee and its calculation is reasonable.
9. If the Purchaser makes default in payment or in taking delivery in time, the Company shall be entitled to terminate any contract with the Purchaser so far as it is unfulfilled, without prejudice to its right to recover all sums owing to it in respect of deliveries already made and services already provided. Upon termination of the contract, the Company shall be entitled to dispose of the balance of the goods contracted for and the Purchaser shall indemnify the Company for any loss in price incurred by it on realisation against the price at which such goods were contracted to be bought by the Purchaser.
10. Where the Purchaser owes any amount to the Company or any of its related companies, the Company shall be entitled, at its complete discretion, to accept any payment received and apply it towards satisfaction of any such indebtedness.
11. The Company shall be entitled to assign to any other person or company all or any part of the Purchaser's indebtedness to the Company and the assignee shall be entitled to claim all or part of the indebtedness and shall have the same rights of recovery as the Company.
12. The Company shall be entitled to cancel all or any part of any contract or contracts with the Purchaser at any time with or without prior notice. Any such cancellation shall be without prejudice to the Company's other rights and remedies including, but not limited to, those which may arise from any breach or non-compliance by the Purchaser.
DELIVERY OF GOODS
13. Unless otherwise agreed in writing, it shall be the Purchaser's responsibility to arrange and pay for transportation of goods from the Company's premises and any transit insurances in respect of the goods. The Company shall not be liable for any loss or damage to the goods during transportation. Delivery shall be deemed to be effected at the point immediately prior to the commencement of loading the goods by the Purchaser (or on the Purchaser’s behalf) at the Company's premises.
14. If agreed in writing, the Company shall be responsible for arranging and paying for transportation of goods from the Company's premises to the delivery location and for any transit insurances in respect of the goods. Delivery shall be deemed to be effected at the point immediately prior to the commencement of unloading the goods by the Purchaser (or on the Purchaser’s behalf) at the delivery location.
15. If delivery is delayed for any reason, the Company shall not be liable to the Purchaser or any other party for any loss sustained due to such delay and the Company reserves the right to cancel delivery of those goods or such instalments thereof without prejudice to its rights to recover all sums owing to it in respect of deliveries already made.
16. Where the Purchaser fails to uplift or accept goods by the delivery date specified or such later date as the parties agree, the Purchaser shall pay reasonable storage costs until such time as the Purchaser uplifts or accepts those goods, such costs to be determined by the Company.
17. If the Company is to deliver goods and the goods are ready for delivery on the date specified by the order of the Purchaser but the Purchaser does not take delivery when requested by the Company to do so, the Company shall be entitled to invoice the Purchaser for payment to be due 14 days from the date specified for delivery in the Purchaser's order or 14 days from the date when the goods were ready for delivery, whichever is the latter.
RISK AND TITLE
18. Risk in goods supplied, or to be supplied, by the Company shall pass from the Company to the Purchaser when the goods are delivered, when the Company first makes an attempt to deliver if the Purchaser fails to accept the goods, or on the date of a request by the Purchaser to delay delivery, whichever is the earliest.
19. Title in goods supplied, or to be supplied, by the Company shall not pass to the Purchaser until all amounts owing by the Purchaser to the Company in respect of those goods and all other goods supplied by the Company have been paid in full.
20. Until title to the goods passes from the Company to the Purchaser in accordance with Clause 19, the following terms shall apply:
(a) The Purchaser shall be deemed to be acting in a fiduciary capacity as bailee of the Company in respect of any goods supplied by the Company;
(b) The Purchaser shall, if required by the Company, store the goods in such condition and place that it is clear that they are owned by the Company;
(c) The Purchaser shall not under any circumstances mix the goods supplied by the Company with other goods in any manner whatsoever; and
(d) If the Purchaser resells goods supplied to it before it has title to them, the Purchaser shall account to the Company as the Company's agent for the proceeds of such resale, but the Purchaser shall not represent to any person that the Purchaser is acting for the Company or has any authority to bind the Company.
21. Where the Company exercises its rights under Clause 6, 9, or 16, in respect of the resale, repossession, or storage of the goods supplied, the Purchaser shall immediately indemnify the Company for all costs incurred by the Company in the exercise of those rights (including legal costs as between solicitor and own client).
22. Subject only to any obligatory statutory rights, no cancellation, addition, deletion, amendment, or variation of any kind of or to any contract of supply between the parties may be made except with the consent of the Company in writing.
CLAIMS AND LIMITATION OF LIABILITY
23. Subject only to any mandatory liability or guarantee imposed by statute, and without prejudice to any rights granted thereby to the Purchaser:
(a) all warranties, descriptions, representations, or conditions, whether implied by law, trade. custom, or otherwise and whether relating to fitness, merchantability, suitability for purpose, or otherwise, and all specific conditions, even though such conditions may be known to the Company, are expressly excluded;
(b) the Company shall not be liable in any way whatsoever to the Purchaser or any third party. whether in tort (including negligence), contract, or otherwise, for any loss or damage whatsoever, whether direct, indirect. special, or consequential, and all such liability is expressly excluded, and
(c) the liability of the Company in respect of any order of goods or services shall in any event be limited to the lesser of the purchase price of the goods or services complained of, the cost of replacing the defective goods or resupplying the defective services, and the actual loss or damage suffered by the Purchaser.
24. Subject to any statutory rights and remedies that the Purchaser may have in respect of any claim by the Purchaser which established that the goods or services supplied were defective, the Purchaser's rights and remedies shall be limited in accordance with Clause 23(c) and shall be subject to the following conditions:
(a) all claims must be received by the Company within seven (7) days of delivery of the goods or provision of the services (as appropriate) and, where applicable, the dispatch number and/or invoice number must be quoted by the Purchaser;
(b) all claims must specifically identify the defect and, where possible in relation to goods be accompanied by the defective goods or a sample thereof;
(c) the Company shall have a reasonable opportunity to investigate the claim; and
(d) the Company may at its complete discretion, replace or give credit for the goods and services supplied and established to be defective, and this replacement or credit shall be deemed to fully satisfy any claim by the Purchaser in respect of any such goods or services.
25. If the Company replaces defective goods, it shall deliver such goods to the Purchaser's premises at the Company's risk and expense.
26. If at any time the Purchaser expressly or by implication holds itself out as acquiring from the Company goods for resale or goods and/or services for the purposes of a business, all supplies of goods and services to the Purchaser by the Company shall be deemed to be for the purposes of the Purchaser's Business (as that latter term is defined in the Consumer Guarantees Act 1993). In such event, as between the Company and the Purchaser, the guarantee provisions of the Consumer Guarantees Act 1993 are expressly excluded and shall not apply to any supplies of goods and services by the Company to the Purchaser.
RIGHT OF SET OFF
27. (a) The Company may apply (without prior notice) all or part of any credit balance with the Company towards satisfaction of any amount owing (whether or not due for payment) by the Purchaser to the Company.
(b) If at any time any amount is contingently due or is not quantified, the Company may retain and withhold repayment of any credit balance the Purchaser may have with the Company pending such amount becoming due or being quantified.
(c) The Company shall not be obliged to exercise any of its rights conferred by this clause 27. The exercise or non-exercise of those rights shall not affect, impair, or otherwise detract from:
(i) any securities or other documents held now or in the future by the Company to secure any indebtedness which may be the subject of a set-off hereunder; or
(ii) any rights, privileges, or directions available to the Company under general law, under any security or other documents, or otherwise, and shall be without prejudice and in addition to such rights, privileges, and directions.
(d) The Purchaser may not assign any credit balance which it may have with the Company and undertakes not to attempt any such assignment.
28. If at any time the Company does not enforce any of these terms and conditions or grants the Purchaser time or other indulgence, the Company shall not be construed as having waived that term or condition or its right to later enforce that or any other term or condition.
29. Where any provision of these terms and conditions of sale is rendered void, unenforceable, or otherwise ineffective by operation of law, that shall not affect the enforceability or effectiveness of any other provision in these terms and conditions.
VARIATION OF CONDITIONS
30. These terms and conditions may only be varied by the Company, in its absolute discretion, and the only circumstances in which any variation to these terms and conditions will apply are where a duly authorised representative of the Company has expressly agreed in writing to that variation. In the event that any of these terms and conditions are in conflict the terms of any other specific written agreement pursuant to which the Company provides goods or services to the Purchaser, the terms of such other written agreement shall prevail.
CIRCUMSTANCES BEYOND THE COMPANY'S CONTROL
31. The Company shall not he liable for any failure to supply goods or services or meet any other obligation owed to the Purchaser where such failure results from fire, flood, industrial dispute, act of government (such as a change in legislation, regulation, or order made under legislative authority), or other circumstances beyond the Company's control.
32. (a) The Company shall at all times remain the owner of beer kegs delivered to the Purchaser and the Purchaser shall accordingly be the bailee of such kegs for the Company. The Purchaser shall, upon demand by the Company, return the beer kegs to the Company and shall pay to the Company the cost of any loss or damage howsoever caused to any keg while the keg is in the possession, or under the control, of the Purchaser.
(b) The Purchaser shall ensure that the beer kegs will not be refilled by anyone other than the Company (any failure to comply with this clause may constitute a breach of section 72(b) of the Food Hygiene Regulations 1974).
PERSONAL PROPERTY SECURITIES ACT 1999
33. (a) The Purchaser will at the Purchaser's cost do and execute all such acts and deeds as may be required to enable the Company to register a finance statement under the Personal Property Securities Act 1999 (PPSA).
(b) The Purchaser waives its rights to receive notice of registration of a finance statement under section 148 of the PPSA.
(c) The Purchaser will advise the Company immediately, in writing, if the Purchaser's name changes.