1.1 In these terms and conditions, the following expressions shall have the following meanings:
“AB InBev Code of Conduct” means the code of business conduct issued by Anheuser-Busch InBev NV/SA, which can be found at www.ab-inbev.com, and any other such codes that may be referred to in this code of business conduct and provided to Customer by Seller from time to time;
“Appendix” means each Appendix to the Contract;
“Bribery Laws” means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction;
“Camden Products” means those products specified in the Trade Agreement and any other products which Customer agrees by virtue of placing an order with Seller, including any instalment, (or where the context permits, services) produced or provided by Seller, which Seller agrees to supply and Customer agrees to purchase, on the sole terms of the Contract and none other; “Commencement Date” means the date set out in the Trade Agreement;
“Conditions of Sale” means the standard terms and conditions of sale set out in this document;
“Consumer” means a person who purchases the Camden Products from Customer for their own consumption;
“Containers” means all containers of whatever kind in which the Camden Products are supplied to Customer together with, where the context provides, “Equipment”; “Contract” means the contract between Seller and Customer for the sale and purchase of the Camden Products which is made up of the Trade Agreement and its Appendices (including these Conditions of Sale);
“Contract Year” means a period of 12 consecutive months from and including the Commencement Date or an anniversary of that date;
“Control” means in relation to Customer the ability to direct the affairs of Customer, whether by virtue of the ownership of shares, contract or otherwise;
“Customer” has the meaning set out in the Trade Agreement;
“Data Protection Laws” means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction as updated and amended from time to time which relates to the protection of individuals with regards to the processing of Personal Data to which a party is subject, including the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016 (“GDPR”) and the Data Protection 2018;
“Equipment” means, without limitation, all stoppers, carbon dioxide tubes and other related equipment, including chillers and cooling equipment but excludes carbon dioxide and / or mixed gas bottles and cylinders of whatever size and, where the context provides, Returnable Equipment;
“Listing Fee” is as specified in the Trade Agreement;
“Minimum Purchase Commitment” the minimum price payable by Customer to Seller in respect of the supply of the Camden Products in the relevant Contract Year (exclusive of VAT), as specified in the Trade Agreement;
“Outlet” is as specified in the Trade Agreement;
“Parent Undertaking” and “Subsidiary Undertaking” means a “holding company” and “subsidiary” as defined in section 1162 of the Companies Act 2006 and “Group” means the relevant undertaking’s Parent Undertakings and all Subsidiary Undertakings of each such Parent Undertaking;
“Product Recall” means any corrective action in relation to Camden Products that are no longer within Seller’s control and which Seller knows or has reason to believe may be unsafe, defective, unfit for purpose or otherwise non-compliant with any applicable law or its own product quality standards;
“Returnable Equipment” means without limitation, cases, pallets, kegs and locator boards;
“Seller” means AB InBev UK Limited T/A Budweiser Brewing Group UK&I (which, where applicable includes AB InBev and AB InBev UK, trading names of AB InBev UK Limited) a company incorporated under the laws of England, with registered number 03982132 whose registered office is at Bureau, 90 Fetter Lane, London EC4A 1EN;
“Shortfall Payment” is the amount equivalent to the difference between the purchase price of Camden Products sold to Customer (exclusive of VAT) and the Minimum Purchase Commitment in respect of the relevant Contract Year;
“Term” the initial term, along with any renewal period, in each case, as specified in the Trade Agreement;
“Total Contract Investment” is as specified in the Trade Agreement;
“Trade Agreement” the trade agreement affixed to these Conditions of Sale;
“Trade Marketing Tools” is as specified in the Trade Agreement; and
“VAT” means value added tax chargeable pursuant to EC Directive 2006/112/EC.
1.2 The Contract supersedes any other terms appearing elsewhere, and overrides and excludes any other terms stipulated or incorporated or referred to, whether in the order or in any negotiations, and any course of dealing established between Seller and Customer, including, without limitation, any purported acceptance by Seller’s employees or agents of Customer.
1.3 Seller shall have no liability for any representation made by it, its employees or agents to Customer, except where fraudulent.
1.4 In the Contract:
1.4.1 clause headings are used for convenience and do not affect interpretation;
1.4.2 reference to the singular includes the plural and vice versa;
1.4.3 reference to one gender includes all others, including the neuter gender and reference to persons include individuals, companies and other legal persons; and
1.4.4 the words include, includes and including are used without inference of limitation.
The Contract will come into force on the Commencement Date and, subject to earlier termination in accordance with its terms, will continue for the Term, unless otherwise extended by the parties.
3.1 Customer will:
3.1.1 purchase the Camden Products from Seller throughout the Term; and
3.1.2 supply Camden Products on no less than the Proportion of Taps specified in the Trade Agreement.
3.2 Customer shall order the Camden Products from Seller. Each order shall be given by electronic data interchange, e-mail, fax or such other method as agreed between Seller and Customer, specify the type and quantity of Camden Products ordered, specify the delivery location and specify the date by or on which the order is to be made available at the delivery location (which shall not be earlier than the second business day after the day of actual receipt of the order by Seller).
3.3 Customer’s purchase and Seller’s supply of Camden Products will be governed by the Conditions of Sale to the exclusion of all other terms and conditions except for Appendices and Trade Agreement which shall prevail in the event of any conflict. All Camden Products are offered for sale on the terms of the Contract, subject to availability and to Seller’s acceptance of Customer’s order.
3.4 The prices for the Camden Products are prices for the supply of Camden Products for distribution to Consumers via the Outlets. Customer agrees not to actively supply Camden Products purchased under the Contract for secondary wholesale.
3.5 The list of Camden Products set out in the Trade Agreement and Appendix 2 is not exhaustive, and may be varied by the written agreement of the parties. In addition, Seller may remove from the list any product that it withdraws from sale and may add to the list any product that it supplies as a replacement or substitute for a withdrawn product.
4.1 Throughout the Term, Customer will purchase the Camden Products from Seller and will purchase from Seller not less than the Minimum Purchase Commitment per year of Camden Products supplied pursuant the Contract.
4.2 Customer will at all times from delivery be responsible for the appropriate storage and refrigeration of all Camden Products and for cellar cooling.
4.3 Customer will allow Seller to enter its Outlets at any reasonable time to inspect the Outlets and to install, maintain, inspect, repair and remove equipment provided by Seller and to inspect and remove any other Seller property. Any and all dispense equipment provided by Seller will at all times be the property of Seller and may not be charged, moved, sold, or disposed of by Customer.
4.4 Customer agrees to provide Seller with cellar access as required by Seller and Customer also agrees to provide, on a monthly basis, information (including copies of documents and data) relating to:
4.4.1 sales of each of the Camden Products to each Outlet;
4.4.2 details, including name, address and telephone numbers of the Outlets (as may be updated from time to time); and
4.4.3 any additional information as Seller may reasonably request for the purpose of monitoring the Contract and Customer’s compliance with its terms.
4.5 Appendix 2 may contain a list of Camden Products that have ‘must stock’ status and a list of Camden Products that have ‘may stock’ status. Customer will stock the ‘must stock’ Camden Products in the Outlets at all times and will stock the ‘may stock’ Camden Products in the Outlets at its discretion.
4.6 Customer agrees not to do anything which could either directly or indirectly harm Seller, its products or reputation.
4.7 Customer agrees to comply with all legislation, regulation and codes of practice applicable to the activities contemplated under the Contract (including those of the Portman Group and the Advertising Standards Authority).
5.1 Seller will provide to Customer the Trade Marketing Tools throughout the Term. Where Customer is not achieving, or Seller does not reasonably expect Customer to achieve, the Minimum Volume Commitment, Seller may require Customer to use additional Trade Marketing Tools or reposition existing Trade Marketing Tools to more prominent positions.
5.2 Seller or a nominated third-party service provider (“Service Provider”) shall supply, install (where appropriate for new and planned refurbishments) and maintain standard dispense and in-line cooling equipment for draught Camden Products in the Outlets (to the extent not already installed/maintained). In the event that the Customer owns its above and / or below bar dispense equipment that services the Camden Products, Seller or the Service Provider shall only maintain any Seller connected equipment. Seller reserves the right not to connect any Customer owned dispense equipment which does not meet health and safety regulations or brand specification as determined by Seller or the Service Provider. Seller will provide a helpline for brands dispense services where needed. As at the date of the Contract, the helpline is on telephone number 020 7485 1671 or email address [email protected] and is available Monday-Friday 09:00 and 18:00 (but is subject to change). In the event that Customer chooses to use their own service provider for brands dispense/installation purposes, Customer shall notify Seller as soon as reasonably practicable to ensure that Seller can provide support in relation to the Camden Products.
5.3 Without limiting clause 5.2, where appropriate, and upon request by Seller, Customer shall enter into a contract with Seller for the provision by Seller of such other Equipment as Seller reasonably considers necessary, to facilitate the proper storage, cooling and dispense of Camden Products.
6.1 Subject to the remainder of this clause 6 and in consideration for Customer meeting its obligations under the Contract, Seller agrees to pay to Customer the Listing Fee and Seller’s Total Contract Investment over the Term.
6.2 In the event that, at the end of a Contract Year or at the end of the Term, Customer has not met its Minimum Purchase Commitment, Seller may demand and Customer shall pay the Shortfall Payment.
6.3 By way of example, where the Contract is terminated or expires and: (i) the value of the Camden Products to achieve the Minimum Purchase Commitment is £1,000 for a Contract Year; and (ii) the price of the Camden Products sold by Seller to Customer in the Contract Year running up to the termination or expiry of the Contract is £500, then Customer would pay a Shortfall Payment of £500.
6.4 Seller reserves the right, at its total discretion, to extend the Contract in order to allow Customer to meet its Minimum Purchase Commitment in the alternative to the Shortfall Payment, but Customer agrees that any time given by Seller shall not be construed as a waiver of its right to receive the Shortfall Payment.
6.5 Where Customer fails to meet any of its obligations under the Contract during a particular Contract Year, Seller shall be entitled to withhold or delay payment of any part of the Total Contract Investment that would have been due and payable to Customer in respect of the following Contract Year.
6.6 In the event of an early termination of the Contact (except where the parties immediately enter into a new trade agreement (or Customer immediately enters into a new agreement with a Seller nominated supplier)), Customer shall pay to Seller: (i) a partial reimbursement of Seller’s Total Contract Investment, calculated on a monthly pro-rata basis across the Term, to reimburse Seller for the amounts of Total Contract Investment paid in respect of the period following termination of this Agreement; and (ii) any Shortfall Payment due at the end of the Term, pursuant to clause 6.2.
6.7 By way of example, if the Term is three years, the total value of the Total Contract Investment over the Term is £60,000 and the Contract is terminated two years into the Term, Customer would pay £20,000 to Seller on early termination, along with any Shortfall Payment due under clause 6.2.
6.8 Without limiting clause 6.5, where Customer fails to meet any of its obligations during any month of a Contract Year, Customer shall pay Seller a partial reimbursement of the Total Contract Investment, calculated on a monthly pro-rata basis across the relevant Contract Year, to reimburse Seller for the amounts of Total Contract Investment paid in respect of any month where Customer failed to meet its obligations. Such payment shall be payable monthly in arrears in respect of any month during which Customer failed to meet its obligations.
6.9 By way of example, if the Total Contract Investment paid for the Contract Year is £20,000 and Customer fails to meet its obligation in a specific month during that Contract Year, the amount repayable in respect of that month would be £1,666.67.
7.1 No order for the Camden Products or services submitted by Customer shall be deemed accepted by Seller until the order is confirmed as accepted by Seller’s authorised representative or (if earlier) Seller delivers the Camden Products to Customer or performs the services.
7.2 Each order is an offer by Customer to purchase Camden Products solely on the terms of the Contract and no other terms.
7.3 Customer shall be responsible for ensuring the accuracy of the terms of any order it submits or delivery note or related invoice for Camden Products it accepts. Any inaccuracy in any delivery note or related invoice to be brought without delay to the attention of Seller (and in any event no later than, in the case of: a delivery note, 3 working days; and an invoice, 10 working days, after issue). Seller shall not be bound by any inaccuracy, howsoever caused, in any document it issued.
8.1 Seller shall determine the method, date and time of any delivery.
8.2 Deliveries shall be made in the UK only, unless otherwise agreed in advance.
8.3 Where specified, all delivery dates given by Seller are estimates only, otherwise Camden Products will be delivered within a reasonable time, and accepted at any time of the day.
8.4 For the avoidance of doubt, the time of delivery or performance shall not be of the essence of the Contract. Camden Products may be delivered by Seller in advance of the quoted delivery date upon giving reasonable notice to Customer. In no circumstances shall Seller be liable to compensate Customer in damages or otherwise for non-delivery, early delivery or late delivery of the Camden Products or for any loss or damage (including loss of profits, opportunity or other loss consequential or otherwise) arising therefrom or for failure to deliver the Camden Products promptly or at all.
8.5 Delivery of the Camden Products shall be deemed to take place when the Camden Products are removed from Seller’s premises or (if carriage is undertaken by Seller) when the Camden Products arrive at the premises of Customer.
8.6 Seller shall be entitled to deliver the Camden Products in one or more consignments unless otherwise expressly agreed, provided that Customer may cancel any item not delivered two weeks after the estimated delivery date.
8.7 Where Seller has been unsuccessful in effecting delivery of Camden Products ordered for any reason Seller may store the Camden Products until actual delivery and charge Customer for reasonable costs (including insurance) of storage.
8.8 Risk of loss or damage to the Camden Products shall pass to Customer at the time of delivery, as set out in clause 8.5.
8.9 Unless otherwise expressly agreed in writing with Seller, Customer shall:
8.9.1 be the ‘importer’ for the purposes of the movement of any Camden Products from Great Britain into Northern Ireland;
8.9.2 be responsible for placing the Camden Products on the Northern Ireland market and any onward movement of the Camden Products to the EU and shall ensure compliance with any and all applicable laws, bye-laws, rules and regulations and any administrative requirements and technical formalities associated with the importation of such Camden Products into Northern Ireland and any onward movement to the EU, including (but not limited to) compliance with any digital import declaration requirements, and the provision of digital safety and security information to any relevant authorities; and
8.9.3 be responsible for the payment of any and all applicable duties, taxes and / or levies imposed on the importation or exportation of the Camden Products.
9.1 The prices for the Camden Products are set out in Appendix 2 and are expressed to be inclusive of delivery charges but exclusive of all duties, levies and taxes, including without limit VAT. VAT at the rate ruling at the invoice tax point date will be added to the price.
9.2 Seller reserves the right, from time to time in the case of increases in the costs of Camden Products due to any variation, whether direct or indirect, in taxes, duties, levies, regulation, legislation or bye-laws, to adjust prices, without notice, to reflect such increase.
10.1 Seller’s invoices are due for payment on or before the 20th day of the month following the month of invoice, for which time shall be of the essence, and which shall be made in full by way of cleared funds in pounds sterling, without set-off or deduction or counterclaim which Customer may have or purport to have.
10.2 Seller shall not be bound to give up possession of or deliver the Camden Products until it has received payment and Seller shall be deemed to have made a sufficient tender of the Camden Products or services if it notifies Customer that the Camden Products or services are ready for dispatch subject to payment.
10.3 Any VAT applicable in respect of any supply of Camden Products made or deemed to have been made by Seller to Customer pursuant to the Contract shall be the sole liability of and shall be paid by Customer to Seller against delivery of a valid VAT invoice, whenever issued.
10.4 Payment for Camden Products and services shall be by Direct Debit unless Seller agrees otherwise. Where Seller agrees to waive the requirement for Direct Debit, payment shall be made by direct transfer into Seller’s nominated bank account.
10.5 If payment under clause 10.1 above is overdue, Seller or its nominee shall be entitled to daily interest on overdue sums from the due date of payment to the date of payment (before and after judgement) at the rate of 4 per cent per annum above the base lending rate from time to time of Barclays Bank plc.
10.6 Upon each event of any payment due by Customer to Seller being dishonoured, a charge of £30.00 (or such other sum as Seller may from time to time advise Customer) will be charged against Customer’s account to cover bank and administrative costs.
10.7 In the event of the account being passed to solicitors for collection, a collection charge of 5% will be levied on such accounts in addition to any interest and legal charges payable.
11.1 Seller shall be entitled to terminate the Contract for convenience upon three months’ written notice.
11.2 Without limiting any other rights and remedies, either party may terminate the Contract immediately upon written notice if the other party:
11.2.1 commits a material breach of any of its obligations under the Contract and, where, the breach is capable of remedy, has failed to remedy the breach within 14 days of written notice requiring remediation; or
11.2.2 the other party makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or otherwise.
11.3 Without limiting any other rights and remedies, Seller may terminate the Contract immediately upon written notice if:
11.3.1 Customer fails to pay any invoice when due and payable under the Contract and has make payment within 14 days of written notice of non-payment;
11.3.2 Customer is the subject of a change of Control; or
11.3.3 Seller anticipates (in its sole discretion) that any of the events referred to in clause 11.2.2 is likely to occur in relation to Customer.
11.4 The expiration or termination of the Contract for any reason is without prejudice to the accrued rights, remedies and liabilities of the parties and those parts of the Contract that are expressly or by implication intended to survive termination shall so survive.
11.5 On expiration or termination of the Contract for any reason:
11.5.1 all and any sums due to Seller shall become immediately due and payable and Customer shall be obliged to continue to comply with the terms of this Agreement until all such sums due to Seller have been received;
11.5.2 at Customer’s own cost, Customer shall promptly return to Seller all Equipment, Containers and Returnable Equipment and other property owned by Seller, along with and any Camden Products in which title has not passed to Seller (together being “Seller Property”); and
11.5.3 in the event Customer fails to comply with clause 11.5.2, Customer (or its nominee) shall be entitled to enter Customer’s premises to retrieve any Seller Property.
12.1 All Containers, Equipment and Returnable Equipment shall at all times remain the exclusive property of Seller, but shall be at Customer’s risk with regard to loss, damage or theft. Customer must not sell, assign, pledge, charge, underlet or in any other way part with possession of the same.
12.2 Customer shall at Customer’s own cost, return all Equipment to Seller on request or, in the case of Containers and Returnable Equipment, immediately on request and no later than two (2) months from the date of delivery. If Customer fails to return any Containers, Equipment or Returnable Equipment in a like-for-like state, or at all, Seller shall be entitled to charge to Customer the cost of replacement as new thereof or Seller shall be entitled to levy a deposit charge from time to time or to enter upon the premises of Customer without notice to audit or recover any such Containers, Equipment or Returnable Equipment. Credit against such deposit will be given for the return in good condition of the same.
12.3 Customer shall at all times keep the Containers, Equipment and Returnable Equipment in accordance with all relevant safety standards and instructions, be responsible for all losses and / or damage to the Containers, Equipment and Returnable Equipment, and shall insure and keep insured with a reputable insurer such Containers, Equipment and Returnable Equipment, from the time of delivery in the name of and for the benefit of Seller.
12.4 It is the responsibility of Customer to ensure that returned Containers, Equipment and Returnable Equipment are noted on each related delivery note. Customer’s signature on the delivery note, or affirmation or payment of any related invoice shall irrevocably be deemed to provide absolute verification thereof.
13.1 Customer shall inspect the Camden Products immediately on receipt thereof and shall:
13.1.1 within three (3) working days, give notice to Seller of, including without limit, any immediately apparent damage to, or shortage of the Camden Products; and
13.1.2 within seven (7) working days, give notice where it is or would have been apparent upon a reasonable inspection, of any ground on which Customer alleges that the Camden Products are not otherwise in accordance with the Contract or are defective.
13.2 If Customer fails to give notice as above:
13.2.1 Customer shall be deemed to have accepted the Camden Products accordingly and to have waived any rights to claim damages for short delivery or otherwise, howsoever caused; and
13.2.2 the Camden Products shall be presumed to be in all respects in accordance with the order and free from any defect which would be apparent from reasonable examination of the Camden Products.
13.3 Following notice per clause 13.1:
13.3.1 any affected Camden Products that are alleged to be defective or otherwise not in accordance with the Contract shall be held by Customer, without cost to Seller, awaiting Seller’s instructions; and
13.3.2 Customer shall allow Seller’s representatives full access at any time during working hours to examine the affected Camden Products.
13.4 In the event that Customer establishes to Seller’s reasonable satisfaction that the Camden Products are not in accordance with the Contract, or are defective, Customer’s sole remedy shall be limited to the return of the Camden Products, and Customer shall be credited accordingly.
14.1 It shall be the responsibility of Customer to ensure that the Camden Products:
14.1.1 are rotated so that (subject to clause 14.1.2 below) the oldest are sold first and in any event before the “Best before Date” which is marked on their Containers;
14.1.2 until resold, remain in the Containers in which they are supplied and all labels, names, barcodes, reference marks and numbers and instruction are not removed, altered or covered at any time;
14.1.3 are resold only from premises suitable for their storage, display and sale;
14.1.4 are stored and sold in compliance with the requirements of all governmental and competent bodies, relating to the sale and storage of such Camden Products; and
14.1.5 are sold in accordance with any instructions provided by Seller, which shall prevail over clauses 14.1.1 to
14.1.4 set out above to the extent the law allows, should there be a conflict between those instructions and this provision.
14.2 Seller will not give Customer credit for the return of any Camden Products (including under clause 13.4):
14.2.1 where the “Best before Date” of those Camden Products has subsequently passed or is approaching; or
14.2.2 which have been altered, tampered with, price marked or disfigured in any way.
15.1 These Conditions of Sale set out Seller’s entire liability in respect of the Camden Products and any services provided in relation to the Contract.
15.2 Except as provided in clause 15.5, all warranties, conditions, terms and liabilities (including the conditions implied by sections 13 to 15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded and Seller shall have no liability in respect of them whatsoever.
15.3 Seller shall in no circumstances be liable for any:
15.3.1 loss of actual or anticipated profit;
15.3.2 loss of business;
15.3.3 loss of contracts;
15.3.4 loss of revenues;
15.3.5 loss of anticipated savings;
15.3.6 depletion of goodwill; or
15.3.7 for any special, indirect or consequential damage of any nature whatsoever, howsoever arising.
15.4 Seller’s aggregate liability (whether in contract or tort, including negligence or any other form of action) for all losses or damage whether direct or indirect, foreseen, foreseeable or known, however arising under or in relation to the Contract in respect of events occurring in any Year shall be limited to the price paid or payable to Seller for the Camden Products and services in that Year, save in the case of a Product Recall when the provisions of clause 17 shall apply.
15.5 Nothing contained in the Contract shall restrict or exclude Seller’s liability in the following circumstances:
15.5.1 for death or personal injury caused by Seller’s negligence;
15.5.2 under Part 1 of the Consumer Protection Act 1987;
15.5.3 under section 12 of the Sale of Goods Act 1979; or
15.5.4 for fraud or fraudulent misrepresentation.
15.6 The parties agree that the exclusions and limitations of liability contained in this clause 15 are fair and reasonable in the light of the Seller Products or services to be provided and the prices payable by Customer.
15.7 Subject to clause 15.5, but save as expressed herein, Seller shall not be under any liability, whether in contract, tort, deceit or otherwise, in respect of any claim, action or proceedings brought by Customer later than two (2) years following the date the cause of action arose.
15.8 Seller shall be under no liability to any purchaser of the Camden Products from Customer.
16.1 Subject to clause 15.5, Customer shall fully indemnify and hold Seller harmless in respect of all damage, injury or loss occurring to any person or property and against all actions, suits, claims (whether actual or threatened), demands, assessments for tax (including but not limited to assessments for customs and excise duties and/or VAT), charges or expenses in connection therewith arising either directly or indirectly from, out of or as a consequence of:
16.1.1 the condition or use of the Camden Products in the event and to the extent that the damage, injury or loss shall have been occasioned partly or wholly by the act, omission, negligence or carelessness of Customer, or their employees or agents;
16.1.2 the performance or non-performance of any contract for the sale and purchase of all or some of the Camden Products by Customer, any successor in title of Customer; or
16.1.3 Customer being in breach of any warranty, undertaking or obligation contained in the Contract.
17.1 In the unlikely event of a Product Recall, and if required by Seller, Customer will enforce Seller’s procedures (as notified to Customer) covering Product Recall, and will cooperate with Seller to ensure that the Product Recall is dealt with promptly and effectively.
17.2 Customer will immediately notify Seller if it becomes aware that any Camden Products are unsafe, defective, unfit for purpose or otherwise non-compliant with any applicable law.
17.3 Where Seller notifies Customer of a Product Recall:
17.3.1 Customer shall immediately cease all further sale or supply of the Camden Products that are subject to the Product Recall;
17.3.2 Customer shall, at Seller’s request, return all Camden Products that are subject to the Product Recall and which remain in Customer’s direct possession to Seller within five (5) working days, or at Seller’s option, destroy those Camden Products;
17.3.3 Customer shall take such other steps as Seller may reasonably request in order to protect consumers or otherwise to facilitate the carrying out of the Product Recall; and
17.3.4 Seller’s liability shall be limited to:
(a) the provision of replacement Camden Products or, where they are not available, credit, on receipt of the recalled Camden Products or proof of destruction; and
(b) delivery and transportation charges which are reasonable in the opinion of Seller.
17.4 Except to the extent required by law, Seller shall not be liable for any further costs or charges as a consequence of the Product Recall.
17.5 Except to the extent required by law, Customer shall not publish any notices or press releases or take any other action in connection with a Product Recall, without receiving Seller’s prior written consent.
18.1 Customer shall at all times carry on its business activities in relation to the Camden Products (whether pursuant to the terms of the Contract or otherwise) in compliance with all applicable laws and the AB InBev Code of Conduct, or Customer’s own code of business conduct provided this includes provisions equivalent to the AB InBev Code of Conduct.
18.2 Customer shall at all times comply, and shall ensure that its employees, officers, agents, sub-contractors and representatives comply, with all applicable laws and regulations including relating to:
18.2.1 bribery, corruption and related matters which shall include (without limitation) ensuring:
(a) compliance with the Bribery Laws; and
(b) that adequate procedures (as defined in the Bribery Act 2010) are in place to prevent bribery;
18.2.2 the evasion (and facilitation of evasion) of tax and related matters; and
18.2.3 slavery and human trafficking including (without limitation) compliance with the Modern Slavery Act 2015 and any similar or equivalent legislation in any other relevant jurisdiction.
18.3 Customer shall immediately notify Seller should it become aware of any actual or suspected breach of this clause 18, or of any actual or suspected breach of any laws or regulations relating to anti-bribery or corruption, tax evasion or slavery and human trafficking by any third party involved in the supply or distribution of the Camden Products.
19.1 It is Seller’s practice to allow provisional credit provided the creditworthiness of Customer can be established to Seller’s satisfaction. If Seller, at its sole discretion, is not satisfied as to Customer’s creditworthiness, Seller reserves the right to withdraw such provisional credit, impose credit terms acceptable to Seller or to close Customer’s account without notice.
19.2 If Seller allows provisional credit in respect of any part of the Camden Products, it shall be without prejudice to its right to refuse to give up possession of any other part of the Camden Products except against payment, provided that the whole of the price of all Camden Products bought or agreed to be bought by Customer shall fall due and payable without demand immediately on the happening of any of the following events:
19.2.1 threat or refusal by Customer to pay any sum due to Seller on the due date for payment;
19.2.2 if Customer ceases or threatens to cease carrying on its business;
19.2.3 commission by Customer of an act of bankruptcy;
19.2.4 appointment of any administrator, administrative receiver, or a receiver of any asset of Customer; or
19.2.5 the levying or threat of execution of any distress or diligence on any asset of Customer.
19.3 The failure of Customer to pay any part of the price of the Camden Products or services in due time shall entitle Seller to:
19.3.1 treat such failure as a repudiation of the whole Contract, as ended by Customer and to recover damages for such breach of contract;
19.3.2 suspend further deliveries of Camden Products to, or performance of the services for, Customer, until payment is received in full;
19.3.3 recover from Customer all costs and expenses (including legal costs) incurred in recovering any unpaid sum or recovery of any Camden Products provided; and/or
19.3.4 enter on to Customer’s premises to retrieve the Camden Products for which payment is outstanding.
20.1 When applying for an account or making an order for the Camden Products, Customer agrees that Seller may check the following records about Customer:
20.1.1 Seller’s own records;
20.1.2 personal and business records of Customer at Credit Reference Agencies (“CRAs”);
20.1.3 personal and business records of Customer at Fraud Prevention Agencies (“FPAs”);
20.1.4 VAT registration from Her Majesty’s Revenue & Customs (“HMRC”); and
20.1.5 Certificate of registration issued by HMRC under the Money Laundering Regulations 2007.
20.2 When CRAs receive a search from Seller they may place a search footprint on Customers’ credit file that may be seen by other lenders. CRAs may supply both public (including the Electoral Register) and shared credit and fraud prevention information.
20.3 Information on applications may be sent to CRAs and may be recorded by them. Where Customer borrows (which includes where appropriate buying Camden Products on a trade credit account) from Seller, Seller may give details of Customer’s accounts and how they are managed to CRAs. If Customer does not pay in full and on time, CRAs may record the outstanding debt. This information may be supplied to other organisations by CRAs and FPAs to perform similar checks and to trace Customer’s whereabouts and recover debts that Customer owes. Records remain on file for 6 years after they are closed, whether settled by you or defaulted.
20.4 If Customer gives false or inaccurate information and Seller suspects or identifies fraud Seller may record this and pass this information to FPAs and other organisations involved in crime and fraud prevention.
20.5 If Customer does not pay, Seller will trace Customer and recover debts.
20.6 Subject to clause 24, Customer’s data may also be used for other purposes for which Customer gives specific permission or, in very limited circumstances, when required by law.
21.1 Seller reserves the right to require confirmation of the identity of Customer from time to time in accordance with the requirements of the Money Laundering Regulations 2007 and other relevant or subsequent legislation or regulation and to withhold Camden Products or services until receipt of such confirmation.
21.2 Seller reserves the right at any time to refuse cash payments and will not in any event accept cash payments of £5,000 or more.
21.3 Customer warrants and undertakes to inform Seller of any cancellation or change of Customer’s Money Laundering Certification, as may be required by HMRC from time to time.
22.1 Customer shall at all times carry on its business activities in relation to the Camden Products (whether pursuant to the terms of the Contract or otherwise) or the Contract in accordance with all applicable laws and regulations concerning tax compliance (including but not limited to the due diligence condition in HMRC Excise Notices 196, 203a and 2002) and in a manner consistent with the AB InBev Code of Conduct.
22.2 Seller may during the term of its trading relationship with Customer and for a period of two (2) years thereafter be permitted on reasonable prior notice to appoint an agent/auditor to audit Customer’s compliance with this clause 22.
22.3 Customer shall retain accurate written records relating to its compliance with clauses 18, 21, 22 and 23 of these Conditions of Sale and shall on reasonable written request by Seller or its agents/auditors:
22.3.1 promptly provide full access to all relevant information, records and documentation (whether in hard copy format or otherwise) in Customer’s possession or control to enable Seller or its agents/auditors (which shall be subject to any relevant confidentiality obligations) to verify such compliance.
22.3.2 grant to Seller and its agents/auditors (which shall be subject to any relevant confidentiality obligations) an absolute right of access to enter Customer’s premises, and to inspect the premises and all information, records and documentation.
22.4 Failure to observe the provisions in this clause shall entitle Seller to:
22.4.1 immediately cancel any order to supply Camden Products without liability (notwithstanding that such order for the supply of such Camden Products had previously been accepted); and
22.4.2 refuse any future orders to supply Customer with Camden Products.
22.5 Seller reserves the right to:
22.5.1 request information from time to time about Customer as it deems necessary in to order to conduct ‘reasonable due diligence’ on it (including but not limited to information requests contained in know your customer questionnaires and annual verification of the same); and
22.5.2 inspect Customers’ documentation on their effective procedures to respond to fraud risks (including but not limited to information requests contained in know your customer questionnaires and annual verification of the same).
22.6 Customer undertakes to promptly provide such information to Seller upon receipt of such request.
23.1 Customer warrants and undertakes to inform Seller (as soon as practicable, but in any event no later than the date when the next consignment of Camden Products is due to be received by or on behalf of Customer) of any cancellation or change of Customer’s VAT number.
23.2 Customer now warrants and confirms that:
23.2.1 (save in relation to payments made in good faith by any consumer) no payments from third parties will be received by it without a supporting commercial explanation in respect of the onward sale of the Camden Products purchased from Seller;
23.2.2 it does not know and there are no grounds to suspect that VAT, consumption taxes, turnover taxes and/or excise duty, whether suspended or not on the Camden Products when supplied to Customer, will not be properly accounted for to the relevant tax authority in the European Union on the release of the Camden Products for consumption in any other EU Member State.
23.3 Customer warrants and undertakes that:
23.3.1 it has not been/ will not be involved in or it has not done/ will not do any conduct (giving rise to criminal liability or not) concerning or connected with the evasion of VAT, consumption taxes, turnover taxes, and /or excise duty (“Dishonest Conduct”);
23.3.2 it has not done/ will not do any act or has not omitted/will not omit to take any action, the purpose of which is to enable any person to evade VAT, consumption taxes, turnover taxes and/or excise duty; and
23.3.3 it is not aware of any facts or circumstance (whether as a result of any enquiries made or otherwise) which cause, or might reasonably be expected to cause, it to know that a consumer has, is, or will be involved in any Dishonest Conduct and where it becomes aware of such facts or circumstances, it will not enter into a contract for sale and purchase of any Camden Products with such a consumer.
23.4 Failure to observe the provisions of this clause 23 shall entitle Seller to:
23.4.1 immediately cancel any order to supply Camden Products without liability (notwithstanding that such order for the supply of such Camden Products had previously been accepted); and
23.4.2 refuse any future orders to supply Customer with Camden Products.
23.5 Customer will comply with any and all lawful requests for information about the destination of Camden Products in order to assist in the detection and prevention of duty fraud.
24.1 For the purpose of this clause 24, “Personal Data”, “Controller”, “Processor”, “Process”, “Processed”, “Processing”, “Data Processor” and “Special Categories of Personal Data” shall have the meanings given to them in the Data Protection Laws.
24.2 The parties each acknowledge and agree that they may need to Process Personal Data relating to each party’s representatives (in their respective capacities as Controllers) in order to (as appropriate): (a) administer and provide the Goods; (b) request and receive the Goods and services; (c) compile, dispatch and manage the payment of invoices relating to the Goods; (d) manage the Contract and resolve any disputes relating to it; and (e) respond and/or raise general queries relating to the Goods and services.
24.3 Each party shall Process such Personal Data relating to each party’s representatives for the purposes set out in clause 24.2 in accordance with their respective privacy policies. The parties acknowledge that they may be required to share Personal Data with their affiliates, group companies and other relevant parties, within or outside of the UK, in order to carry out the activities listed in clause 24.2, and in doing so each Party will ensure that the sharing and use of this Personal Data complies with applicable Data Protection Laws.
24.4 Where and to the extent that one party (a “Processing Party”) may Process Personal Data for and on behalf of the other party (a “Controlling Party”) in connection with the Contract, the Processing Party shall be deemed the Processor and the Controlling Party shall be deemed the Controller.
24.5 The Processing Party shall comply with the obligations imposed upon a Processor under the Data Protection Laws and shall co-operate with the Controlling Party and take all such action as are necessary to enable the Controlling Party to comply with its obligations under the Data Protection Laws and shall not perform its obligations under the Contract in such a way as to cause the Controlling Party to breach any of its obligations under the Data Protection Laws, expressly and without limitation:
24.5.1 the parties shall agree and document (where required) by way of an addendum to the Contract the nature of the processing in accordance with Article 28(3), and otherwise the Processor shall comply with the obligations set out in Article 28(2), (3), and (4) of the GDPR, and any other duties as set out in the Data Protection Act 2018;
24.5.2 no Personal Data shall be transferred outside the EEA without the express approval of the Controlling Party and such approval is subject to such further conditions or requirements of the Controlling Party; and
24.5.3 notification of any real or suspected security breach, personal data breach or breach or infringement of the Data Protection Laws by the Processor shall be made promptly and no later than twenty-four hours after the Processor became aware of such incident.
25.1 The Customer shall comply at all times with the Seller’s Anti-Harassment & Discrimination Policy, available on request. In particular, the Customer agrees that discrimination based on race or sexuality, sexual harassment and any other types of harassment are unacceptable behaviours, will take proactive measures to prevent such behaviour, and will report any potential occurrence of such incidents related to the Seller’s personnel on the official compliance reporting line in 5 business days from learning about the incident. If the Customer’s non-compliance with the Seller’s Anti-Harassment & Discrimination Policy persists even after notice and opportunity to remedy, then the Seller reserves the right to take appropriate measures to protect its employees, including terminating the Trade Agreement.
26.1 Any notice given under the Contract shall be in writing and shall be sent by pre-paid first class post or actual delivery to the address set out on the Trade Agreement (in the case of Customer) and in the definition of “Seller” (in the case of Seller) or such other address as may be notified by the parties to each other in writing.
27.1 Neither party shall be liable for any failure or delay in the performance of its obligations under these Conditions of Sale or the Contract of which they form part (other than an obligation to pay any sums due under these Conditions of Sale) which is caused by circumstances beyond its reasonable control. For the avoidance of doubt, this clause 27 shall not operate to relieve Customer from any obligation to make any payments to Seller under clause 6 in the event the Minimum Purchase Commitment is not met, nor to reduce or extinguish the Minimum Purchase Commitment in any way.
28.1 All intellectual property rights in the Goods shall remain the property of Seller or its licensors. Customer shall not acquire any intellectual property rights, whether by licence or otherwise, relating to the Goods in any way and may not copy or imitate the Goods or do or omit to do, or permit any third party to do or omit to do, anything which may damage such intellectual property rights in any way. For the avoidance of doubt, any point of sale material is supplied by Seller for use by Customer for business purposes only.
29.1 The content of the Contract is the confidential information of Seller and is not to be published, copied or discussed by Customer without the prior written consent of Seller. In particular but without limitation Customer shall not disclose to any third party any prices, discounts or other commercial terms.
30.1 Neither party shall without the prior written consent of the other party assign, sub-contract or otherwise deal with the Contract or any rights and obligations under the Contract, save that Seller shall be entitled to assign the Contract as part of a reorganisation or to any member of its Group and shall be entitled to subcontract all or part of its obligations under the Contract, in each case without seeking consent.
30.2 If a party assigns or sub-contracts any of its obligations under the Contract to any third party, the party assigning or sub-contracting shall be fully responsible to the other party for the proper performance of those obligations and for any act or omission of the third party.
31.1 If any provision of the Contract is declared void or otherwise unenforceable then the provision shall be omitted and the remaining provisions of the Contract shall continue in full force and effect.
31.2 The parties shall attempt to substitute for any invalid, illegal or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid, illegal or unenforceable provision.
32.1 Save as expressly excluded or limited in the Contract, failure or delay by either party to exercise any right or remedy under the Contract shall not be deemed to be a waiver of that right or remedy, or prevent the party from exercising that or any other right or remedy on any occasion.
33.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to the Contract, and nothing in the Contract shall confer on any third party the right to enforce any provision of the Contract.
34.1 These Conditions of Sale (and the Contract of which they form part) shall be governed by and construed in all respects (including non-contractual disputes or claims) in accordance with English law and Customer submits to the (exclusive) jurisdiction of the English Courts in relation to any claim or matter arising from these Conditions of Sale and/ or the Contract of which they form part (including non-contractual disputes or claims).