Terms and Conditions
TERMS & CONDITIONS
Flat Cap Drinks Ltd operates 1 website for which this policy applies; flatcapdrinks.com
- Definitions In these terms and conditions, the following expressions have the following meanings:
“the Buyer” means the person, firm or company which has placed an Order (which has been accepted) for the purchase of Goods and/or Services from the Company;
“the Buyer’s Group” means the companies (if any) in the group of companies of which the Buyer is a member;
“the Company” means Flat Cap Drinks Ltd; “the Company’s Group” means the companies (if any) in the same group of companies of which the Company is a member;
“the Goods” means the products which the Buyer has agreed to purchase from the Company pursuant to any Order;
“Order” means a contract between the Company and the Buyer for the supply of products manufactured or sold by the Company to the Buyer for the supply of services or for a mixture of products and services;
“Purchase Request” means any document submitted by the Buyer to the Company containing the Buyer’s request, order or agreement to be supplied with goods and/or services by the Company;
“the Services” means the services (if any) described in any Order.
The following terms and conditions shall apply to all offers, between the Company and the Buyer and shall have precedence over any terms and conditions proposed, forwarded or referred to by the Buyer whether in the Purchase request or in negotiations and these terms and conditions shall be binding upon the Company and the Buyer.
These terms and conditions supersede and cancel any previous terms and/or conditions of the Company.
- Offer and Acceptance
The Purchase Request shall constitute an offer by the Buyer for the Goods and/or the Services subject to these terms and conditions and to any other terms stipulated in the Company’s quotation or estimate. Subsequent delivery by the Company of a written acknowledgement shall constitute acceptance by the Company of such an offer. If the Purchase Request contains any provision which purports to vary or is in any way inconsistent with these terms and conditions, the Company’s acknowledgement of the Purchase Request shall constitute a counter offer and the Buyer shall be deemed to have accepted these terms and conditions if thereafter accepts delivery of any Goods or the supply of any Services supplied by the Company, unless it has previously notified the Company that it does not accept the counter offer within three days of receiving the Company’s acknowledgement and, in any event, before taking delivery of any Goods or receiving the supply of services from the Company.
- Alterations to Goods or Services/specifications
The Company reserves the right to:
(a) Alter the design or specification of any of its products Goods or Services; or
(b) Substitute new or varied products Goods or Services for any former products Goods or Services; or
(c) Withdraw any products Goods or Services from the market and in any such event without giving prior notice thereof to the Buyer and without being liable for any loss or damage which may be sustained by the Buyer.
(a) Prices for products given in any estimate are approximate only and the actual price payable shall either be determined by reference to a subsequent quotation or (in the absence of such a quotation) shall be the price ruling at the date of dispatch.
(b) Prices for Services shall be as stated in any quotation or shall be charged at the Company’s hourly rates for the services current at the time of Services are provided.
(c) Prices indicated or given in any estimate or quotation are subject to Value Added Tax and the Company shall charge Value Added Tax or similar tax at the applicable rate whether or not such amount has specifically been provided for in any relevant estimate, quotation or invoice.
(d) All prices for products estimated or quoted are “ex work” London unless otherwise stated in writing.
(e) Prices given in any quotation (which for the purposes of this clause 5 shall mean a written document issued by the Company and clearly headed “quotation”) shall be valid for 30 days only from the date of such a quotation, or (if applicable) from the date that a revised quotation in respect of the same products and/or Services is issued.
(f) Any prices contained in any estimate, quotation, invoice or credit note are subject to revision by reason of any clear omission or error.
(a) The Company may invoice the Buyer on or at any time after the Order is made. Payment is due from the Buyer on the 30th day of the month following the date of the Company’s invoice.
(b) Time of payment shall be of the essence.
(c) In default of payment on the due date the Company without prejudice to any other right available to it shall have the right to charge the Buyer interest on the overdue payment at a monthly rate of 3.5% above Barclays Bank Plc’s lending rate from time to time from the date that payment was due until the date that payment is made to the Company.
(d) The Company shall at its discretion (without prejudice to any other right available to it) be entitled to withhold dispatch of any Goods or Services ordered by the Buyer or any company within the Buyer’s Group pursuant to any Order between the Company and the Buyer or such company until all monies owing by the Buyer to the Company have been paid in full with interest (if any due).
(e) In the event that payment in respect of any Order is more than seven days overdue, all amounts outstanding from the Buyer to the Company shall thereupon forthwith become due and payable.
(a) Except as provided in clauses 7c) below, the risk in Goods sold shall pass to the Buyer on delivery to the Buyer or to the Buyer’s carrier (whichever is the earlier).
(b) The Buyer shall ensure that, throughout any period when risk in any Goods has passed to the Buyer but title to such Goods remains with the Company pursuant to clause 8, there is a valid contract of insurance relating to such Goods in force with a reputable insurer in respect of all risks against which it is prudent commercial practice to insure. The Buyer shall if requested by the Company procure that the interest of the Company in such Goods is noted by the Insurer.
(c) Where the Company designates in writing including designations contained in its price list, quotation, estimate or Order, that certain goods are named “Breakaways”, risk in those Goods shall pass to the Buyer on dispatch from the Company and not at time of delivery. For the avoidance of doubt damage to such Goods during transit shall be at the Buyer’s risk.
(a) Neither legal nor beneficial title to the Goods will pass to the Buyer until;
(i) The Buyer has paid to the Company all sums due and payable from the Buyer (and any member of the Buyer’s Group) to the Company (and any member of the Company’s Group); or
(ii) The Company serves on the Buyer notice in writing to that effect; or
(iii) The Buyer uses the Goods in a manufacturing process which involves the Goods ceasing to exist as separate goods and becoming inextricably mixed or amalgamated with other goods; whichever shall happen first.
(b) The Buyer hereby licenses the Company, its servants and agents to enter upon any premises of the Buyer for the purpose either of satisfying itself that condition (c) below is being complied with by the Buyer and/or, if the Company has terminated the Buyer’s right of resale pursuant to condition (e) below, for the purposes of recovering any Goods in respect of which property has not passed to the Buyer.
(c) Until title to the Goods has passed to the Buyer, it shall possess the Goods as a bailee of the Company the terms of the bailment being modified by this Order. If the Company so requires the Buyer shall store the Goods separately from other goods (whether or not the Buyer’s property) and shall ensure that they are clearly identifiable as belonging to the Company.
(d) Notwithstanding that title has not passed and subject to sub-clause (e) the Buyer may sell the Goods as a mercantile agent but only on terms that title to the Goods shall not pass to the purchaser until the Buyer as mercantile agent has received payment in full of all moneys owing from the purchaser. Until such payment is made the Company reserves the right to recover payment for the Goods from the purchaser in accordance with the provisions of sub-section 12(3) of the Factors Act 1889.
(e) The Buyer’s right of resale may be terminated by the Company upon oral or written notice to the Buyer immediately if the Buyer defaults in payment of any sum when due and shall automatically cease if a receiver is appointed over any of the assets of the Buyer or any person shall become entitled to levy distress in respect of any assets situated at any premises or the Buyer, or a judgement is entered against the Buyer and is not paid out within seven days, or a petition is presented for an administration order in respect of the Buyer, or a petition is presented or notice is given of a resolution to wind up the Buyer or the Buyer is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
(f) The Buyer shall not be entitled to pledge or grant any security in any way for any indebtedness over or in respect of any Goods which remain the property of the Company.
(g) Notwithstanding the provisions of sub-clauses (d), (e) and (f), the Company shall, if it retakes the Goods and resells them, accounts to the Buyer for the balance (if any) as determined pursuant to sub-clause (i).
(h) The Buyer guarantees payment to the Company of all amounts due and payable from any member of the Buyer’s Group to any member of the Company’s Group, provided that:
(i) Such guarantee shall be conditional upon the Company retaking the Goods and reselling them: and
(ii) The Buyer’s maximum liability pursuant to such guarantee shall be limited to a sum equal to the amount by which any sum received by the Company on resale of the Goods (including the expenses of resale) is in excess of the amount owing by the Buyer to the Company (other than pursuant to the guarantee contained in this sub-clause (h)) .
(i) The balance in respect of which the Company shall account to the Buyer in the circumstances specified in sub-clause (g) shall be the proceeds of sale of the Goods less:
(i) The expense of resale; and
(ii) The amount owing from the Buyer to the Company (other than pursuant to the guarantee contained in sub-clause (h)); and
(iii) The amount (if any) for which the Buyer is liable to the Company pursuant to sub-clause (h).
(a) Time of delivery shall not be of the essence of the Order. The period quoted for delivery of the Goods or provision of Services (if any) commences from the date of the acknowledgement of the Purchase Request but is an estimate only. The Company shall use reasonable commercial endeavors to deliver the Goods or provide the Services by the date specified (if any) on acknowledgement of the Purchase Request but shall not be liable in any way for delay in delivery or provision from any cause whatsoever and howsoever arising nor shall such delay (subject to clause 16) entitle the Buyer to reject the Goods or treat the Order as repudiated or render the Company liable for damages in any way.
(b) The Company shall have the right to make delivery of any Order for Goods or services by instalments and in such cases each instalment shall be invoiced separately and shall be regarded as constituting a separate agreement and to each such agreement these terms and conditions shall apply.
(c) The Buyer may make reasonable requests in relation to detailed delivery arrangements or as regards the provision of the Services and the Company shall use its reasonable endeavors to comply with such requests provided that sufficient notice (and in any event not less than four working days) is given to the Company of any such request (or any change thereto).
(d) Nothing in these terms and conditions shall affect or limit the liability of the Company in relation to:
(i) Any liability which the Company may have arising out of death or personal injury resulting from the Company’s negligence:
(ii) Any liability for breach of the obligations arising under Section 12 of the Sale of Goods Act 1979 or under Section 13 of the Supply of Goods and Services Act 1982.
(e) The Buyer specifically confirms that it accepts the reasonableness of this clause 13 having regard to the relative availability and cost, to the Company and the Buyer respectively, of insurance against relevant risks.
- Delayed Delivery
(a) If by reason of the Buyer’s default the Goods or Services or any of them have not been taken up or delivered by any date specified for such taking up or delivery then:
(i) The Buyer shall nevertheless pay the Company in accordance with clause 6 of these terms and conditions as if such taking up or delivery has occurred; and
(ii) The Buyer shall pay the Company reasonable rent for the period (if any) of storage by the Company of any of the Goods which have not been taken up or delivered together with any additional costs incurred in respect of insurance, transport and/or handling.
(b) During the period of any storage of any of the Goods by the Company as contemplated by this clause, such Goods shall be at the risk of the Buyer.
- Damage in transit/short delivery
(a) No responsibility will be accepted by the Company for any shortage on delivery or damage occurring in transport for Goods falling within the provisions of clause (7(c).
(b) In cases where risk in the Goods passes on delivery no responsibility will be accepted by the Company for any shortage on delivery or damage occurring in transport unless:
(i) Where the Goods are delivered other than by the Company’s transport the Buyer makes a claim in writing providing full particulars within seven working days of receipt of the Goods;
(ii) Where the Goods are delivered by the Company’s transport details of any shortage and/or damage are endorsed on the delivery note.
(c) No responsibility will be accepted by the Company for non-delivery of the Goods unless the Buyer submits a claim in writing providing full particulars to the Company at its registered office and (where appropriate) the carrier not more than fourteen days after the date of the Company’s advice of despatch.
- Suitability of Goods and Services
(a) Goods and Services are sold on the express understanding that it is the exclusive responsibility of the Buyer to satisfy itself that the Goods and Services are suitable for the purposes for which they have been ordered and without prejudice to the generality thereof to take all necessary steps and undertake tests appropriate for the intended use.
(b) Unless otherwise stated in writing all descriptions, specifications, drawings and particulars of weights and dimensions contained in the Company’s catalogues, brochures, price lists, data sheets, manuals or other published matters are approximate only and do not form part of any contract or Order or give rise to any independent or collateral liability by the Company being intended merely to present a general indication of the Company’s products Goods and Services.
(c) Whilst the Company’s staff will endeavor to provide the Buyer with information, particulars and specifications which are as accurate as possible they are not authorized to bind the Company to any matter which is not confirmed in writing. Accordingly, the Buyer must obtain the written confirmation, signed by a duly authorized representative, of any matters which are considered important and should not seek to rely on any oral representations. Save as expressly stated in these conditions the Buyer undertakes to the Company that the Buyer has made such enquiries and performed such tests as it considers appropriate to ensure the suitability and fitness of the Goods and Services for their intended purposes and applications.
(a) Except as provided in these terms and conditions, no liability shall attach to the Company in respect of the sale of Goods or the provision of Services to the Buyer, the terms of the Order, or any other matter arising therefrom. Any terms or provisions relating to the condition, functioning or quality of the Goods or Services which would otherwise be deemed by law to apply are hereby excluded.
(b) Without limitation to (a) above, the Company expressly excludes liability for:
(i) Consequential loss or damage including but not limited to loss or damage to other goods or property, loss of profit, business revenue, goodwill or anticipated savings; and
(ii) Any third party claim brought against the Company and/or the Buyer in respect of the Goods or services.
(c) In the event that the Company incurs any liability pursuant to these terms and conditions including without prejudice to the generality of the foregoing any liability for supplying Goods or Services of a third party, or if any exclusion or limitation of liability contained in these terms and conditions is held to be invalid for any reason and the Company as a result becomes liable for loss or damage that would otherwise have been excluded under these terms and conditions, the Company’s total liability shall be limited to the price of the Goods or the charge for the Services which are the subject of the Order.
Cancellation or variation of an Order by the Buyer must be made by notice in writing and shall not be effective until accepted in wiring by an authorized representative of the Company. The Company reserves the right to refuse to accept such cancellations or variation or to accept cancellation or variation only subject to such conditions as the Company may determine. Acceptance by the Company of the cancellation or variation shall be subject to payment by the Buyer of such cancellation or variation charges as the Company shall deem reasonable. Such charges shall take into account expenses incurred and commitments made by the Company and all other losses due to such cancellation or variation.
The Buyer shall indemnify the Company against all claims, demands, penalties, costs and expenses for which the Company may become liable by reason of the infringement or alleged infringement of any patent, design right (whether registered or unregistered), trademark, service mark, copyright or any other industrial property right arising out of the Company’s performance of any Order.
- Force Majeure
(a) The Company accepts no liability for any failure to deliver the Goods or provide the Services arising from circumstances outside the Company’s control. Non-exhaustive illustrations of these circumstances are Acts of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations (U.K. or otherwise), delay by suppliers, accidents and shortage of materials, labour or manufacturing facilities.
(b) If the Company is prevented from delivering in any of the above circumstances it shall notify the Buyer of the fact in writing within 10 days commencing with the estimated delivery date.
(c) If the circumstances preventing delivery are still continuing 3 months from and including the date the Company sends such notice then either party may give written notice to the other cancelling the Order. Such written notice must be received whilst the circumstances are still continuing.
(d) If the Order is cancelled in this way the Company shall refund any payment which the Buyer may already have made on account of the invoice price (subject to deduction of any amount which the Company is entitled to claim from the Buyer) but the Company accepts no liability to compensate the Buyer for any further loss or damage caused by the failure to deliver.
- Buyer’s Default
If the Buyer shall be in default of any of its obligations under any Order, the Company shall without limitation be entitled by written notice to the Buyer to cancel the Order and to resell the Goods and provide the Services elsewhere and the Buyer shall be liable for any loss sustained by the Company on any such resale.
- Buyer’s insolvency
(a) If the Buyer
(i) being a company
(aa) has a petition presented for its winding-up or
(bb) passes a resolution for voluntary winding-up (other than for the purpose of a bona fide amalgamation or reconstruction) or
(cc) enters into any voluntary arrangement with its creditors or
(dd) becomes subject to administration order or
(ee) has a receiver appointed of all or any of its assets or
(ii) being an individual or a firm
(aa) becomes bankrupt or insolvent or
(bb) enters into any voluntary arrangement with his creditors or
(iii) being a company an individual or a firm commits a serious breach of these terms or conditions or any other term of the Order (and in the case of such a breach being remediable fails to remedy it within seven days after receiving notice to do so) Then in any of the above cases the Company shall be entitled to treat the Order as being at the end or suspend any further deliveries or the provision of further Services under the Order without liability to the Buyer. If the Goods have been delivered but not paid for the price shall become due immediately regardless of any previous agreement to the contrary.
(b) If the Company shall doubt the ability of the Buyer to pay for the Goods or the services as and when payment is due it may demand security for payment at any time before continuing with any Order or delivering any Goods or services to the Buyer.
(c) 18(a) and (b) above are without prejudice to any other rights or remedies which the Company may have.
Any notice required or authorized to be given hereunder or any other communication between the parties provided for under the terms of the Order shall be served by prepaid first-class letter or by either telex or facsimile message addressed to either party at its registered office or at its normal trading address as stated in the Purchase Request and/or any acknowledgement thereof. Any notice so given by post shall be deemed to have been received on dispatch and in proving such service it shall be sufficient proof that in the case of notice by post the letter containing the notice was properly addressed and posted and that in the case of notice by telex the correct answerback was received and that in the case of notice by facsimile message an activity report was generated showing the correct number of pages transmitted and the recipient’s correct facsimile number.
- Governing Law
Any Order in which these terms and conditions are incorporated shall be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English Courts