Terms of Sale

1. Definitions

1.1 "Supplier" means Conviviality Group. An order may contain Products Supplied by one or more members of the Conviviality Group.
1.2 "Conviviality Group" means Conviviality Group Limited and any other company which is a member of Conviviality Group Limited’s group from time to time, which performs part or all of the obligations under these Group Terms of Sale.
1.3 "Customer" means the person, firm or company placing an order with the Supplier.
1.4 "Products" means all those Products and materials which are the subject of any Customer's order and which are to be supplied to the Customer by the Supplier under these Terms of Sale.
1.5 "Contract" means a contract for the supply of Products formed by the Supplier's acceptance (which, however made or communicated, shall be deemed made subject to these Terms of Sale) of any Customer's order.

2. Formation of Contract

2.1 All Products sold by the Supplier are sold subject to these Terms of Sale and these Terms of Sale shall be the sole terms and conditions of any sale by the Supplier to the Customer. Terms and conditions on the Customer's order form or other similar document shall not be binding on the Supplier and the placing of an order for or the acceptance of the Products by the Customer shall indicate unqualified acceptance of these Terms of Sale.
2.2 No representative, agent or sales person has authority to vary, amend or waive any of these Terms of Sale on behalf of the Supplier and no amendment or addition to any of these Terms of Sale shall be deemed to have been accepted unless accepted in writing by the Supplier.
2.3 These Terms of Sale supersede all previous oral or written representations, undertakings and agreements relating to the Products. All information contained in the Supplier's sales literature or correspondence is provided for guidance only and does not form part of the Contract. The Supplier's employees and agents are not authorised to make representations or give undertakings relating to the Products or the meaning of these Terms of Sale. The Supplier may vary any Product specification without notice.
2.4 An order placed with a Supplier may be accepted, processed or fulfilled by any member of the Conviviality Group and these Terms may be enforced by any of them, in each case either as principal or as the duly authorised agent for one of the other companies. This is done to ensure the effective processing and administration of orders and does not in any way affect any of the Customer's rights under these Terms.

3. Orders and delivery

3.1 Orders are accepted by the Supplier subject to the availability of Products for delivery.
3.2 The Supplier may impose a minimum order amount from time to time. Any order for Products may be rejected if it does not fulfil the Supplier's minimum order size requirements.
3.3 Delivery shall take place when the Supplier or its carrier unloads the Products at the Customer's premises (if the Supplier arranges transport within the United Kingdom at the Customer's request) or when the Customer or its carrier or agent collects the Products from the Supplier's premises or in the case of Free on Board orders, when the Supplier or its carrier hands over the container to the Customer or its carrier at the port of departure. The Customer will comply with the Supplier's reasonable delivery instructions.
3.4 The Products are not sold on a sale or return or exchange basis and the Supplier does not supply Products on approval. Products may only be returned with the Supplier's prior written authorisation, in their original condition and packaging, with no additional price marking, within date and carriage paid, for credit and subject to the Customer reimbursing all the Supplier's costs relating to the Contract.
3.5 Although the Supplier will use all reasonable efforts to meet delivery dates, any and all delivery dates provided are estimates only and the Supplier shall not be liable to the Customer for any loss or damage, whether direct, indirect or consequential if it is delayed or prevented, in whole or in part, from delivering the Products.
3.6 If the Customer refuses or fails to take delivery of the Products on the date of delivery, the Supplier will be entitled at its discretion to store the Products at the risk of the Customer and the Customer shall in addition to the price payable under clause 5 pay all costs and expenses of such storage and any additional costs of carriage incurred.
3.7 The Supplier reserves the right to deliver in instalments at its discretion.
3.8 The Supplier may during any periods of shortage due to causes beyond its control, supply Products on a pro rata basis among its Customers in such a manner as may be deemed equitable in the sole judgement of the Supplier and without liability therefor. The Supplier may suggest substitutions for out of stock Products and any Order will be deemed amended to take account of substitutions which are expressly accepted by the Customer
3.9 The Customer shall inspect the Products on delivery. Products which on delivery are damaged, non-conforming, out of date or short or in excess may be rejected only if the Customer retains for inspection all packaging, endorses any delivery document with details of any obvious loss or damage and informs the Supplier and the Supplier's carrier in reasonable detail and in writing by the end of the third day after delivery. The Customer may not reject any other Products in a delivery. The Customer may not reject short or excess deliveries which are within a margin of 5% of the quantity ordered. The Supplier will adjust the price pro rata. The Customer shall notify the Supplier of any total failure to deliver within 48 hours after the date of the Supplier's invoice. Unless rejected or notified as not delivered in accordance with this clause, Products shall be deemed accepted and the Contract shall be treated as affirmed. The Supplier shall not be liable for Products which are lost, damaged in transit or out-of date unless they are notified to it in accordance with this clause. Returns are only accepted in respect of the same vintage of wines supplied (as applicable) in full, original cases, in a saleable condition (or otherwise in the condition in which Products were delivered).

4. Risk

4.1 Except as otherwise provided in these Terms, the risk of loss or damage to the Products shall pass to the Customer upon delivery or attempted delivery of the Products in accordance with clause 3.4.

5. Price

5.1 The price payable for the Products shall be as stated in the Supplier price list current at the date of delivery unless otherwise stipulated in writing by the Supplier. Where the Products are supplied for export from the United Kingdom, the Supplier’s published export price list shall apply. All prices quoted are valid for 14 days only or until earlier acceptance by the Customer, after which time the Supplier may alter them without giving notice to the Customer.
5.2 The prices of Products stated in the Supplier’s general or any Customer specific price list are subject to alteration without prior notice and will be reviewed at least once in each calendar year. In particular (and without limiting the foregoing) prices are subject to alteration to reflect changes in duty or foreign exchange rates and variations in the pricing of the Supplier's suppliers.
5.3 Other than Free on Board pricing, the price of the Products includes standard packaging and delivery in mainland UK but excludes any special inspection or delivery requirements, any additional transportation costs imposed by law and incurred by the Supplier, export duties and value added tax all of which shall be for the account of the Customer.
5.4 Free on Board pricing is for full container loads of Product sourced from their country of origin unless specifically agreed otherwise in advance with the Supplier.

6. Credit accounts

6.1 The Supplier may, at its sole discretion, establish a credit account for the Customer. A credit account shall only become operational after the Supplier has confirmed in writing that such a facility will be available to the Customer. The Supplier shall be entitled, at its sole discretion, to refuse or at any time withdraw a credit account without giving reason.
6.2 In accepting the offer of a credit account the Customer agrees that the Supplier may make periodic searches with credit reference agencies and fraud prevention agencies to manage the Customer credit account, to take decisions regarding credit, including whether to make available or to continue or to extend existing credit. The Supplier shall not disclose any information obtained carrying out such searches to any third party without the Customer's consent except as may be required at law.

7. Payment

7.1 If the Customer has a credit account with the Supplier, the Customer shall make payment for the Products in pounds sterling, in full and in cleared funds, in accordance with the credit terms and on the date set out in the Supplier invoice. The Supplier shall be entitled to invoice the Customer for each Order at any time after delivery of the Products. Customers without a credit account, or with insufficient credit will make payment at the time an Order is placed.
7.2 If the Customer does not have a credit account with the Supplier the Customer shall make payment for the Products in pounds sterling in cleared funds prior to receipt of the Products.
7.3 If the Customer fails to make any payment due to the Supplier under the terms of this agreement by the due date for payment then without prejudice to the Supplier’s other rights, the Customer shall pay interest on the overdue amount at the rate of 8% per annum. Interest shall accrue on a daily basis from the due date until payment of the overdue amount whether before or after judgment and the Customer shall pay the interest together with the overdue amount.
7.4 The Customer shall not purport to set off or withhold any payments claimed or due to the Supplier under this or any other contract.
7.5 Any discounts from list price are given on the basis that payment is made on or before the date specified in clause 7.1. In the event of late payment the Supplier shall be entitled to remove any discounts (including on any other orders with the Customer) and re-invoice the Customer for the Products at the full price stated in its then current price list.
7.6 In addition to any other remedy available to it the Supplier may make a charge for each cheque unpaid by the Customer's bank, and for each direct debt or cheque returned marked "please re-present" and the Customer shall indemnify the Supplier fully against all fees, costs and expenses incurred in seeking to recover sums payable by the Customer or in repossessing Products belonging to the Supplier.
7.7 Where a Customer's cheque is returned marked "refer to drawer" the Supplier reserves the right to cancel any accounts and terms quoted and to request a bankers draft or require payment prior to Order delivery.
7.8 If the Supplier at its sole discretion agrees to the return of the Products before any payment has been made by the Customer the Customer shall be liable to pay the Supplier a handling charge of 10% of the full purchase price of the Products. If the Supplier has agreed to the return of the Products when the Customer has made only part payment, the Supplier shall return the part payment after deducting a handling charge of 15% of the unpaid balance of the purchase price of the Products or the Services.
7.9 If payment is to be made by instalments the failure of the Customer to pay any instalment in due time shall entitle the Supplier to treat such failure as a repudiation of the whole Contract by the Customer and to recover damages for breach of Contract and the full balance outstanding on any account between the Supplier and the Customer shall become immediately payable.
7.10 The Supplier reserves the right to defer without penalty delivery of any Products which have been ordered by the Customer or defer supply of any Services which have been ordered by the Customer for so long as any amounts remain overdue for payment or any credit limit is exceeded.
7.11 The Supplier reserves the right at any time to set off any sum due from it to a Customer against any invoice rendered to it by such Customer.
7.12 The Supplier reserves the right at any time at its discretion to demand security or suitable guarantee for or to vary the terms or method of payment before continuing with or delivering Products in satisfaction of any order notwithstanding any subsisting agreement to provide credit to the Customer.

8. Title and lien

8.1 The Supplier shall retain title to and ownership of all Products until it has received payment in full of all sums due for all Products supplied to the Customer. If payments received from the Customer are not stated to refer to a particular invoice the Supplier may appropriate such payments to any outstanding invoice.
8.2 Until property in the Products passes to the Customer it may use or resell the Products in the ordinary course of its business provided always that the Customer shall hold in trust and pay to the Supplier on demand the proceeds of any such sale to the extent that any monies are owed by the Customer to the Supplier on any account. The Customer shall not be the agent of the Supplier in relation to any resale. Until their use or resale the Customer shall hold the Products as the Supplier's bailee, keep them secure, insured, separate from any other products and identifiable as the Supplier's property and shall not charge, pledge or deal with them or allow any lien or other interest to arise over them
8.3 If the Customer fails to make any payment to the Supplier when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order against it or, being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed over all or part of its assets or takes or suffers any similar action in consequence of debt or becomes insolvent or if the Supplier has reasonable cause to believe that any of these events is likely to occur, the Supplier shall have the right, without prejudice to any other remedies to:

(i) enter without prior notice any premises where Products owned by it may be, and to repossess and dispose of any Products owned by it so as to discharge any sums owed to it by the Customer under this or any other contract;
(ii) require the Customer not to resell or part with possession of any Products owned by the Supplier until the Customer has paid in full all sums owed by it to the Supplier under this Contract or any other contract;
(iii) withhold delivery of any undelivered Products and stop any Products in transit.

Unless the Supplier expressly elects otherwise, any Contract between it and the Customer for the supply of Products shall remain in existence notwithstanding any exercise by the Supplier of its rights under this clause 8.

8.4 The Products shall, once the risk has passed to the Customer in accordance with clause 4 or otherwise, be and remain at the Customer's risk at all times unless and until the Supplier has retaken possession of them, and the Customer shall insure accordingly.
8.5 The Customer shall acquire no title to casks, kegs, pallets, returnable bottles and cases and gas cylinders (in this clause 8.5, all "containers") referred to in any invoice. Certain containers such as returnable bottles and cases will carry a deposit charge which will be refunded on their return. When empty all containers should be made available for collection by the Supplier or its agent. The Supplier shall not be liable for any storage, handling or other charges for containers awaiting collection. Containers are at the Customer's risk from the point of delivery until they are collected by the Supplier or its agent. The Supplier reserves the right to charge for any containers which are not returned or are returned in a poor or unusable condition or after an unreasonable delay.
8.6 Where the Supplier delivers draught products to the Customer in kegs, such kegs shall be deemed to be on loan to the Customer for a period of three months, after which time the Customer shall make the kegs available to the Supplier for collection. The Supplier may invoice the Customer for the cost of replacing any kegs not made available to the Supplier for collection.
8.7 Pallets used for the delivery of the Products are the property of the manufacturer. At the time of delivery the Customer must exchange with the carrier's driver an equal number of empty pallets as the number of laden pallets delivered. If the Customer does not have available sufficient number of empty pallets then the Customer shall provide to the carrier's driver a pallet control voucher stating the shortfall and the Customer shall arrange for a collection date for the carrier's driver to collect the shortfall of pallets.
8.8 Where any dispense equipment for draught products has been supplied to the Customer at the Supplier's expense then the Customer shall ensure that such equipment is regularly cleaned and is maintained in good working order. The Customer will be responsible for any damage caused by or to the equipment as a result of the Customer’s negligence or failure to follow guidelines regarding its use. The Customer shall notify the Supplier immediately if the Customer ceases to use such equipment for the dispensing of the Supplier's products.

9. Warranty

9.1 The Supplier warrants that the Products will correspond with any description given in its price list or specification and be of satisfactory quality and will comply with all applicable UK legislation governing the sale of the Products and the Supplier will at its option refund the purchase price of, or replace free of charge any Products which its examination confirms are defective provided:-
(i) the Customer makes a full inspection of the Products immediately upon delivery;
(ii) the Customer notifies the Supplier immediately of any defects which it discovers;
(iii) the Customer has stored the Products in a suitable environment and at the appropriate temperature; and
(iv) the Products are either made available to the Supplier for inspection or returned to the Supplier at the Customer's own expense in their original condition and packaging, as the Supplier may request.
9.2 In no circumstances shall the Supplier's liability to the Customer for any breach of warranty exceed the price paid for the Products with respect to which the claim is made.
9.3 Except as provided for in these Terms of Sale, there are no warranties, express or implied, of fitness for a particular purpose, or of any other kind except as to title. In particular, all Terms and warranties which would otherwise be implied by statute or under common law are hereby excluded to the fullest extent permitted by law.
9.4 No refund, credit or replacement will be given for out of date Products unless they are validly rejected for being out of date when delivered to the Customer.

10. Liability

10.1 The Supplier shall under no circumstances be liable for any indirect, special or consequential loss or for any loss of anticipated profit or third party claims howsoever arising either from breach or non-performance of any of its obligations under the Contract or from the supply of or intended use of the Products, even if the Supplier has been advised of the possibility of such potential loss. The Supplier shall be liable without limit for loss arising from death or personal injury resulting from the proven negligence of the Supplier and nothing in these Terms of Sale shall have the effect of excluding or limiting liability under the Consumer Protection Act 1987 to a person who has suffered damage caused by a defective product, or to a dependent or relative of such person.
10.2 The Supplier will not be liable for any loss, damage, claim, cost or expense arising from the Customer's failure to comply with the Supplier's instructions relating to the keeping, handling, use and storage of the Products or from any error in or absence of bar-code printing on the Products or their packaging.

11. Use and Disclosure of Personal Data

11.1 The Customer consents to the processing by or on behalf of the Supplier of personal data (as defined by the Data Protection Act 1998) supplied by the Customer or held by the Supplier for the purposes of administering the Customer's credit account and processing any orders.
11.2 Unless the Customer notifies the Supplier in writing, the Customer consents to the use of such personal data for direct marketing purposes and disclosure by the Supplier to third parties for marketing purposes. The Customer's statutory rights under the Data Protection Act 1998 shall remain unaffected.

12. Termination

12.1 Should the Customer make default in any payment or otherwise be in breach of its obligations to the Supplier under a Contract or under any other contract with the Supplier or commence negotiations, compound with or execute an assignment for the benefit of its creditors or commit any act of bankruptcy or being a company enter into voluntary or compulsory liquidation or suffer a receiver or administrative receiver or administrator to be appointed over all or any part of its assets or take or suffer any similar action in consequence of debt or become insolvent or should the Supplier have reasonable cause to believe that any of these events is likely to occur, the Supplier may, by notice in writing to the Customer, without prejudice to any other rights, immediately suspend or cancel any uncompleted part of the Contract or stop any Products in transit or require payment in advance or satisfactory security for further deliveries under the Contract or the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy.

13. Force Majeure

13.1 The Supplier shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the Products by the Supplier being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of the Supplier including, without limitation, circumstances affecting the provision of all or any part of the Products by the Supplier's usual source of supply or delivery or by the Supplier's normal route or means of delivery.

14. Waiver

14.1 The failure of the Supplier to insist upon the strict performance of any of the terms and Terms of the Contract shall not be construed as a waiver of any such term or condition and shall in no way affect the Supplier's right to enforce such provision later.

15. Severability

15.1 If any of the terms and Terms of the Contract (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and Terms (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.

16. Contracts (Rights of Third Parties) Act 1999
16.1 For the purposes of section 1(2) to the Contracts (Rights of Third Parties) Act 1999 the parties state that they do not intend any term of condition in these Terms of Sale to be enforced by third parties.

17. Miscellaneous

17.1 The Customer is responsible for its stock control and rotation of stock. The Customer shall store, handle, use and sell the Products in accordance with any instructions from the Supplier and all applicable laws and regulations and undertakes to the Supplier to indemnify the Supplier against any loss, liability, damage, expense, action or claim arising from its failure to do so.
17.2 The Customer shall be responsible for checking and verifying the suitability for its requirements of any bar-coding on the Products.
17.3 If requested by the Supplier, the Customer shall give all reasonable assistance in locating and recovering any defective Products and preventing their sale to third parties, and, in particular shall comply with any product recall procedures adopted by the Supplier and shall use all reasonable endeavours to ensure that its customers co-operate in a similar manner.
17.4 Any materials supplied by the Customer to the Supplier shall be at the Customer's risk while they are in the possession of the Supplier or in transit to or from the Customer and the Customer shall insure them accordingly. The Customer warrants that it has authority to supply any materials, designs and specifications provided by it to the Supplier and that any Products produced using or based on the same will not infringe any third party rights. The Customer shall indemnify the Supplier in full against any loss, claim, cost and expense arising from any breach of this warranty.
17.5 The Supplier reserves all intellectual property rights in the Products and any associated merchandise or documentation, including but not limited to copyright, registered and unregistered design rights, patents and patent applications, registered and unregistered trade marks and confidential know-how. Save for the honest use of any trade marks to identify the Products, the Customer may not use any such rights without the Supplier's express written consent.
17.6 If the Products are exported outside the United Kingdom, the Customer shall be responsible for complying with all laws and regulations governing their importation, handling, use and re-sale in the country of destination. Unless agreed otherwise in writing, the Customer shall bear all risks in export Products after they leave the Supplier's premises and Section 32(3) of the Sale of Products Act 1979 shall not apply. For the purposes of Sections 44, 45 and 46 of that Act, any carrier or United Kingdom port used to export the Products shall be deemed to be an agent of the Supplier.

18. Governing law

18.1 The construction, validity and performance of the Contract shall be governed by English law and by entering into the Contract the parties submit to the jurisdiction of the English courts. However, the Supplier shall be permitted to bring legal proceedings in any other court of competent jurisdiction. Legal proceedings commenced in any one or more jurisdictions shall not preclude legal proceedings being commenced in any other jurisdiction, whether by way of substantive action, ancillary relief, enforcement or otherwise.

19. Bribery Act 2010

19.1 The Customer shall:-
(i) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(ii) comply with the Supplier’s Anti-Corruption and Bribery Policy
(iii) promptly report to the Supplier any request or demand which if complied with would amount to breach of either these terms and conditions or the Supplier’s Anti-Corruption and Bribery Policy.
19.2 Breach of this clause shall be deemed a material breach of this Agreement entitling the Supplier to terminate it immediately

Company No. 2550982 | 109a Regents Park Road London NW1 8UR | Call: 0845 263 6924 | AWRS Number: XVAW00000101595

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