Terms and Conditions – Wholesale & Trade
Terms and Conditions – Wholesale & Trade
Terms and Conditions of Sale
These are the legal terms and conditions (Terms) on which we sell any of the products (Products) supplied by Marble Brewery.
These Terms will apply to any contract between us for the sale of Products to you (Contract) to the exclusion of any other terms that you seek to impose or incorporate, or implied by trade, custom, practice or course of dealing. Please read these Terms carefully and make sure that you understand them, before ordering any Products from us. Please note that by ordering any of our Products, you agree to be bound by these Terms and the other documents expressly referred to.
The Contract constitutes the entire agreement between the parties. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Contract.
Information about us
We operate Marble Brewery. We are Marble Beers Limited, a company registered in England and Wales under company number 03142173 and with our registered office at Richard House, Winckley Square, Preston, Lancashire PR1 3HP. Our main trading address is Marble Brewery, 41 Williamson Street, Manchester, M4 4JS. Our VAT number is 639082327.
If you wish to contact us in writing you can send us an e-mail to firstname.lastname@example.org. If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your order.
Ordering and purchase of Products
When you submit an order for Products to us (Order) the Order constitutes an offer by you to purchase the Products in accordance with these Terms. You are responsible for ensuring that the terms of the Order are complete and accurate.
After you place an Order with us you will receive either a verbal or a written confirmation that we have received your Order. However, please note that this does not mean that your Order has been accepted. Confirmation of our acceptance of your Order will take place only when you receive a delivery note signed by an authorised employee of Marble Beers Ltd, specifying the Products delivered.
You may only purchase Products from us if you are at least 18 years old. You must supply proof of age upon request.
All Products are subject to availability.
3.1 Delivery of an Order shall be completed when Marble Beers Ltd, or its agent, delivers the Products to the delivery location specified by you in the Order, or as otherwise agreed with us. If we agree that you or your agent shall collect the Products, the subject of any Order, from a Marble Beers Ltd premises then delivery shall be completed on the completion of loading of the Products at such premises.
3.2 Time is not of the essence for the purposes of delivery. Delays in the delivery of any Products shall not entitle you to either refuse to take the delivery of an Order or claim damages from us. We shall not be liable for any delay in delivery or failure to deliver any Products that is caused by an event outside our control.
3.3 Marble Beers Ltd shall have no liability for any failure or delay in delivering any Products to the extent that the same is caused by your failure to comply with your obligations under these Terms, including the adequate provision of instructions.
4 Title and risk
4.1 The risk in the Products shall pass to you on completion of delivery.
4.2 Title to the Products shall not pass to you until we have received payment in full (in cash or cleared funds) for:
(a) the Products; and
(b) any other goods or services that we have supplied to you in respect of which payment has become due.
4.3 Until title to the Products has passed to you, you shall:
(a) hold the Products on a fiduciary basis as our bailee;
(b) store the Products separately from all other Products held by you so that they remain readily identifiable as our property; and
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products,
but you may resell or use the Products in the ordinary course of your business.
4.4 If before title to the Products passes to you, you become subject to any of the events listed in clause 10.2, or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Products and, if you fail to do so promptly, enter any of your premises or the premises of any third party where the Products are stored in order to recover them.
5 Return of Ancillary Goods
5.1 Ancillary Goods means those support items including, but not limited to, returnable casks or kegs, taps and stillage.
5.2 All Ancillary Goods provided by Marble Beers Ltd in provision of the Products shall, unless specified in writing by us, remain the property of Marble Beers Ltd until either returned in good condition or paid for in full by you.
5.3 We shall be entitled to charge you for Ancillary Goods that are not returned or made available for collection within 90 days of receipt by you. Such payment shall be at current market prices as determined by us plus interest calculated at the rate of 4% per annum above the Bank of England’s base rate from the date of receipt by you of the Ancillary Goods.
5.4 Ancillary Goods shall be returned to Marble Beers Ltd by the same method as they are delivered to you.
5.5 Where Ancillary Goods are to be collected by us or our agent you shall ensure such Ancillary Goods are made available for collection at such times as we shall reasonably request.
5.6 Where you are solely responsible for the return of Ancillary Goods, it is your duty to organise and return all Ancillary Goods within the 90 day period. Such responsibility will be deemed to lie with you unless we have specified otherwise in writing.
5.7 Where Ancillary Goods are sent out by you to any third party, it is your sole responsibility to ensure that the delivery and return of such Ancillary Goods is recorded. These records shall be made available to us when reasonably requested.
5.8 Where the Ancillary Goods are sent out by you to any third party, you are responsible for the uplift of these Ancillary Goods in a timely fashion in accordance with BBPA Technical Circular No. 418: Keg and Cask Supply Chain Best Practice.
5.9 You agree to keep any and all property belonging to us, including Products and Ancillary Goods which are situated at the your premises or place of sale insured against all risks for their full replacement cost unless and until title passes to you.
5.10 Upon becoming aware of any breach of clauses 5.6, 5.7, 5.8 or 5.9 we may, at our discretion, request the return of all returnable Ancillary Goods in your possession within 90 days, after which time the replacement value of the returnable Ancillary Goods will become immediately payable by you.
Price of Products and delivery charges
6.1 Prices for our Products may vary from time to time and shall be the price set out in the Order, or, if no price is quoted, the price set out in our price list in force as at the date of delivery.
We may, by giving notice to you at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by you, to change the delivery date(s), quantities or types of Products ordered; or
any delay caused by any of your instructions or failure by you to give to us adequate or accurate information or instructions.
The quoted price of a Product excludes VAT at the applicable current rate chargeable in the UK for the time being. However, the invoice for Products will include VAT at the current rate where applicable. If the rate of VAT changes between the date of your Order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Products in full before the change in VAT takes effect.
The price of a Product does not include delivery charges. Our delivery charges are as quoted from time to time and will be invoiced to you at the current VAT rate at the time of delivery.
7.1 We shall invoice you for each Order prior to or at the point of delivery.
7.2 Payment for the Products and all applicable delivery charges must be made in advance unless otherwise specified by Marble Beers Ltd in writing. Your Order may not be dispatched until we have received payment in full through bank BACS transfer to our nominated bank account.
7.3 In some circumstances, when confirmed in writing by us, we may agree that you may pay the invoiced amount in full at the time of delivery by cash or bank cheque.
7.4 If you are approved in writing by us for credit accounts with us, you shall receive an invoice prior to or at the point of delivery. Unless otherwise specified in writing by us you shall pay such invoices in full and in cleared funds by the 21st day of the calendar month following the month in which delivery falls.
7.5 Without prejudice to any other right under law, if you fail to make any payment due to us by the due date for payment, you shall be liable to pay interest on any overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of payment, whether before or after judgement.
7.6 Without prejudice to any other right under law, if you fail to make any payment due to us by the due date for payment, you shall pay to us all costs and expenses incurred by us in recovering such overdue amounts, including without limitation, the fees of any debt collection agencies instructed, any court fees and any legal costs.
7.7 If you dispute any invoice you shall immediately notify us in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly.
7.8 We may, without limiting any other rights or remedies we may have, set off any amounts owed to us by you against any amounts payable by us to you. If you fail to adhere to agreed payment terms, we may cancel and charge back any discounts received or receivable by you during or in respect of the period of non-adherence
8 Defective Products
8.1 You may reject any Products delivered to you that do not comply with an Order placed, provided that you:
i) examine the Products at delivery;
ii) retain packaging materials for inspection;
iii) endorse the relevant delivery note with details of the defect;
iv) notify us in writing of the defect within 3 business days of delivery or, if later, within 3 business days of the defect becoming apparent; and
v) if requested to do so by us, return the Products to our premises.
8.2 We shall not be liable for defective Products in any of the following events:
(a) you make any further use of such Products after giving notice in accordance with clause 8.1; or
(b) the defect arises because you failed to follow our oral or written instructions as to the storage and use of the Products or (if there are none) good trade practice regarding the same.
8.3 If you fail to give notice of rejection in accordance with clause 8.1, you shall be deemed to have accepted the Products.
8.3 If you reject any Products under clause 8.1 then we may, at our discretion, either replace the rejected Products or issue a credit note equivalent to their invoiced value. Marble Beers Ltd will have no further liability to you in respect of the rejected Products.
9.1 You may reject draught Products delivered to you that are unfit for sale to the public provided always that:
(a) the recommended settling and venting times are observed;
(b) the recommended temperatures are maintained during storage of the Product;
(c) the storage/service areas (usually a cellar) are kept clean and free of micro biological contaminants;
(d) less than two gallons has been removed from the Product;
(e) the Product is sealed and retained to be uplifted by us or our agent.
9.2 Ullages will be collected by us or our agent and an ullage note shall be given to you upon collection. A credit note will then be provided by us to you if the defect is identified in testing by us.
9.3 Ullages for bottled Products will be accepted by us only prior to the Best Before Date on the bottled Product.
10.1 If you become subject to any of the events listed in clause 10.2, or we reasonably believe that you are about to become subject to any of them and notify you accordingly, then, without limiting any other right or remedy available to us, we may cancel or suspend all further deliveries under the Contract or under any other contract between us without incurring any liability to you and all outstanding sums in respect of Products delivered to you shall become immediately due.
10.2 For the purposes of clause 10.1, the relevant events are if:
(a) an order is made or a resolution is passed for your winding-up or an order is made for the appointment of an administrator to manage your affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of your assets or undertaking or circumstances arise which entitles the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitles the Court to make a winding-up order or you take or suffer any similar or analogous action in consequence of debt; or
(b) (being an individual) you die or, by reason of illness or incapacity (whether mental or physical) are incapable of managing your own affairs or become a patient under any mental health legislation.
10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11 Intellectual Property
Unless otherwise stated, the copyright and other intellectual property rights in all material provided with our Products, including without limitation any branding, product names, designs and trade marks are owned by us or our licensors. Any use of extracts from such for any purpose is prohibited and nothing in these terms or otherwise shall be construed as granting any rights in our intellectual property.
12 Limitation of Liability
12.1 This clause sets out the entire financial liability of the parties to each other in respect of:
(i) any breach of these Terms;
any use made or resale of the Products by you, or of any products incorporating any of the Products; and
(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms.
12.2 Nothing in these terms shall limit or exclude the liability of either party for:
(i) death or personal injury resulting from negligence; or
fraud or fraudulent misrepresentation; or
(iii) breach of the terms implied by s.12 of the Sale of Goods Act (1979); or
(iv) breach of s.2 of the Consumer Protection Act (1987).
12.3 Without prejudice to clause 12.2, we shall under no circumstances be liable to you, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of profit, goodwill, business, business opportunity, anticipated saving or special, indirect or consequential damage suffered by you that arises under or in connection with any Order.
12.4 Without prejudice to clause 12.2 or clause 12.3, our total liability arising under or in connection with each Order, whether arising in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to the value of the Products under that Order.
12.5 Each party agrees that all liability for and remedies in respect of any representations are excluded except as expressly provided in these Terms.
13. Force Majeure
Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under these terms so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a force majeure event. A force majeure event means an event beyond the control of a party which by its nature could not have been foreseen by such party, or was unavoidable.
14. General Terms
14.1 If any provision of these terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
14.2 Any variation of these Terms shall only be effective if in writing and signed by a duly authorised representative of Marble Beers Ltd.
14.3 Any waiver of any right under these Terms is only effective if it is in writing. Failure by a party to exercise any right under these terms shall not be deemed to be a waiver of that right nor preclude any future exercise of that right by that party.
14.4 A person who is not a party to these shall have no right under the Contract (Rights of Third Parties) Act (1999) to enforce any term of these terms.
14.5 No employee or agent of Marble Beers Ltd has any authority to bind us by oral arrangement at variance with these Terms. Nothing in this clause shall limit or exclude any liability for fraud.
14.6 Any notice required to be given pursuant to these Terms shall be in writing and shall be given by delivering the notice by hand at, or by sending the same by prepaid first class post (airmail if to an address outside the country of posting) to the address of the relevant party set out in these Terms or such other address as either party notifies to the other from time to time. In the absence of evidence of earlier receipt, any notice given according to the above procedure shall be deemed to have been given at the time of delivery (if delivered by hand) and two business days after posting (if sent by post).
14.7 These terms and any dispute or claim arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.