KICKING HORSE LTD.
Terms and Conditions of Sale
1.1. “Contract” means the contract for sale and purchase of Goods in accordance with these Terms.
1.2. “Customer” means the person firm or company who accepts the Seller’s quotation for the sale of Goods, orders the Goods and whose order for Goods is accepted by the Seller.
1.3. “Goods” means all those beers and other goods or services supplied by the Seller.
1.4. “Seller” means Kicking Horse Ltd.
1.5. “Terms” means the standard terms and conditions of sale of the Seller as set out in this document to which all Contracts shall be subject. These Terms supercede any terms and conditions of the Customer.
1.6. “Orders” means a request by the Customer for Goods subject to these Terms.
1.7. The headings in these Terms are for convenience only and shall not affect their interpretation.
2. The Contract
2.1. All Orders are accepted by the Seller only under these Terms and these Terms shall be the sole terms and conditions of any sale by the Seller to any Customer. The Terms may not be altered except with the written agreement of a Company Director of the Seller. Any contrary or additional terms unless so agreed are excluded. The placing of an Order for or the acceptance of Goods by the Customer shall indicate unqualified acceptance of these Terms.
2.2. Orders are accepted by the Seller subject to availability of Goods at the time of delivery. Substitutions for out of stock items will only be made with the Customer’s Agreement.
2.3. These Terms supersede all previous oral or written representations, undertakings and agreements relating to the Goods.
2.4. The Seller reserves the right to revise or change the style of labels and packaging at any time to make any changes in the specification of the Goods which are required to conform with any applicable health, safety or other statutory and/or E.U. requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
2.5. The Seller shall not be liable in respect of any misrepresentation made by the Seller its employees or agents to the Customer as to the condition or quality of the Goods as far as English law allows or unless the representation is made or confirmed in writing by the Seller.
2.6. While the Seller takes every precaution in the preparation of its catalogues, price lists and other literature these documents are for the guidance of the Buyer only and statements therein shall not constitute representations by the Seller and the Seller shall not be bound by them. Any typographical, clerical or other error or omission in any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Price Payment and Credit
3.1. The price payable for Goods shall be that stated in the Seller’s price list current at the date of delivery unless otherwise agreed in writing by the Seller. Seller quotations and prices are based on costs and excise duty prevailing at the time when they are given or agreed. All prices quoted are exclusive of Value Added Tax which is payable at the rate ruling at the date of delivery unless zero rated or exempt from VAT.
3.2. The prices of Goods stated in either the Seller’s general price list or any Customer specific price list including it’s website are subject to alteration without prior notice and will be reviewed at least once in a calendar year. Specifically (and without limiting the foregoing) prices are subject to alteration to reflect changes in duty or foreign exchange rates and variations in the prices charged to the Seller by their suppliers.
3.3. Any discounts, deductions, allowances, listing fees or rebates are specific to the Customer and must be agreed in advance and are only available if all sums due from the Customer to the Seller are paid by the due date. In the event of late payment the Seller shall be entitled to remove any discounts, deductions, allowances, listing fees or rebates (including on any other orders with the Customer) and reinvoice the Customer for the Goods at the full price stated in its then current price list.
3.4. The Seller shall be entitled to invoice the Customer for the price of Goods on or at any time after the Goods are ready for collection or delivery.
3.5. The Seller may at its sole discretion set up a credit account for the Customer. The Seller shall be entitled, at its sole discretion, to refuse or at any time to withdraw a credit account without giving a reason. In accepting the offer of a credit account the Customer agrees that the Seller may make periodic searches with credit reference agencies and fraud prevention agencies to manage the customer credit account. The Seller shall not disclose any information obtained carrying out such searches to any third party without the Customer’s consent except as may be required by law.
3.6. If the Customer has a credit account with the Seller the Customer shall make payment for the Goods in pounds sterling in cleared funds by the end of the calendar month following the calendar month in which the Goods were delivered.
3.7. If the Customer does not have a credit account with the Seller the Customer shall make payment for the Goods in cleared funds prior to the receipt of the Goods.
3.8. If payment is not made by receipt of the Goods by the Customer then the Seller may without prejudice to its other rights, charge interest at an annual rate of 4% above the current base rate of The Royal Bank of Scotland plc to be calculated on a day to day basis on the balance outstanding until payment is made in full.
4.1. The Customer may cancel an order free of charge at any stage of processing prior to the transmission of the order to the Sellers distribution department. The Seller will be entitled to refuse cancellation or apply a charge for orders cancelled post transmission.
4.2. Deliveries are free of charge for UK deliveries for all orders.
4.3. Delivery shall occur when the Goods have been collected by the Customer or have been unloaded at the Customer’s address by the Seller or their appointed carrier or attempted to deliver but was unable to due to action or omission of the customer. If the Customer fails to take or make arrangements to accept delivery or collect the Goods or if the Seller is unable to deliver because of inadequate access or instructions delivery shall be deemed to have occurred and the Seller may do any one or more of the following (without prejudice to any other right or remedy the Customer may have):-
4.3.1. make additional charges for failed delivery
4.3.2. store the Goods at the Customers risk and cost;
4.3.3. invoice the Customer for the Goods;
4.3.4. terminate this Contract without liability on the Seller’s part; and/or
4.3.5. recover from the Customer all costs and losses incurred by the Seller.
4.4. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence
4.5. If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control, or the Customer fault, and the Seller is accordingly liable to the Customer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods. The Customer will indemnify the Seller in respect of all losses damages costs and expenses incurred as a result of delivery in accordance with the Buyer’s instructions. This indemnity will be reduced in proportion to the extent that such losses damages costs or expenses are due to the Seller’s negligence.
4. Orders and Deliveries
5.1. The Customer shall inspect the Goods at the place and time of loading if the Goods are collected and unloading if the Goods are delivered.
5.2. Unless the Seller or the delivery driver is notified forthwith and written notice is received by the Seller within 5 working days of loading or unloading as the case may be of any claim apparent on reasonable inspection for loss or damage in transit, short delivery or failure to conform to the Contract the Goods will be deemed to have been delivered in accordance with the delivery documents and accepted by the Customer and the Customer shall not be entitled to any right to reject the Goods.
5.3. The Customer shall sign the delivery documents with discrepancies annotated as appropriate. Delivery documents signed as ‘unchecked’ will be deemed as accepted as per the delivery order by the Customer.
5.4. The Seller’s liability for loss or damage in transit, short delivery, failure to conform to the Contract or apparent on reasonable inspection is limited to supplying the Goods as ordered and the Seller shall not be liable for any damages whatsoever. The Customer remains liable to pay the full invoice price of other Goods delivered in accordance with the Contract.
5. Inspection of Goods
6.1. Returns are permitted if either Seller within 5 working days of delivery); or
6.1.1. the Goods were delivered to the Customer incorrectly (these should be reported to the Goods stored separately from any other goods, protected and insured, and shall not interfere with any identification marks, labels, batch numbers or serial numbers on the Goods.
6.1.2. advance consent has been granted by the Seller’s account manager for the Customer in accordance with the Seller’s sale or return agreement.
6.2. Authorised returns must be arranged in advance to allow sufficient time for collection documentation to be raised.
6.3. Returned beers must be the same batch as currently stocked.
6.4. Returned Goods must be presented in full (original) cases.
6.5. Bottles must be returned in a saleable condition with seals and neck capsules.
6.6. Bottle labels must not be stained or damaged.
6.7. Credit notes should be issued subject to the results of a condition inspection.
6.8. Drivers are only authorised to collect Goods that are included on a collection note.
6.9. Any queries at the point of collection should be directed to the Kicking Horse team on 07739531317..
6.10. The Seller will email the Customer a copy of the collection note prior to the collection if requested by the Customer.
5. Product Returns
7.1. Risk of loss or damage to the Goods shall pass to the Customer when theGoods are delivered by the Seller to the Customer or collected by the Customer.
7.2. The Seller shall retain title to and ownership of all Goods until it has received payment in full of all sums due for all Goods supplied to the Customer
7.3. Until title in the Goods passes to the Customer it may use or resell the Goods in the ordinary course of its business as principal and not as the Seller’s agent provided always that the Customer shall hold in trust and pay to the Seller on demand the proceeds of any such sale to the extent that any monies are owed by the Customer to the Seller on any account. Until title passes to the Customer or until the Customer resells the Goods the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee, shall keep the Goods stored separately from any other goods, protected and insured, and shall not interfere with any identification marks, labels, batch numbers or serial numbers on the Goods.
7.4. If a Customer fails to make any payment to the Seller when due, and/or compounds with its creditors, and/or executes an assignment for the benefit of its creditors, and/or has a bankruptcy order against it and/or, being a company, enters into a voluntary or compulsory liquidation or has an administrator or administrative receiver appointed over all and/or part of its assets or takes and/or suffers any similar action in consequence of debt and/or becomes insolvent or if the Seller has reasonable cause to believe that any of these events is likely to occur, the Seller shall have the right, without prejudice to any other remedies:
7.4.1. At any time to recover any or all of the Goods to which it has title and for that purpose the Seller its employees or agents may with such transport as is necessary enter upon any premises occupied by the Customer or to which the Customer has access and where the Goods may be or are believed to be situated.
7.4.2. To dispose of the repossessed Goods owned by it so as to discharge any sums owed to it by the Customer under this Contract or any other contract
7.4.3. To require the Customer not to resell or part with possession of any Goods owned by the Seller until the Customer has paid in full all sums owed by it to the Seller under this Contract or any other contract.
7.5. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness, any of the Goods which remain the property of the Seller, but if the Customer does so, all monies owing by the Customer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.6. Without prejudice to the foregoing none of the Goods are supplied on a “sale or return” basis.
7. Title Risk and Lien
8.1. The Seller warrants that the Goods will correspond with any description given in its price list or specification and be of satisfactory quality and will comply with all applicable UK legislation governing the sale of the Goods and the Seller will at its option refund the purchase price of, or replace free of charge any Goods which its examination confirms are defective provided:
8.1.1. Customer makes a full inspection of the Goods immediately upon delivery;
8.1.2. Customer notifies the Seller immediately of any defects which it discovers;
8.1.3. Customer provides a proof of purchase;
8.1.4. Customer provides the production LOT or BATCH number;
8.1.5. Customer has stored the Goods in a suitable environment and at the appropriate temperature; and
8.1.6. Goods are either made available to the Seller for inspection or returned to the Seller in their original condition and packaging, as the Seller may request.
8.1.7. The goods have not expired the best before date in the Customer’s possession.
8.2. In all cases, claims must be made by the Customer.
8.3. In no circumstances shall the Seller’s liability to the Customer for any breach of warranty exceed the price paid for the Goods in respect of which the claim is made.
8.4. Except as provided for in these Terms there are no warranties, express or implied, of fitness for a particular purpose or of any other kind except as to title. In particular, all Terms and warranties which would otherwise be implied by statute or under common law are hereby excluded to the fullest extent permitted by law.
8.5. No refund, credit or replacement will be given for out of date Goods unless they are validly rejected for being out of date when delivered to the Customer.
9.1. Nothing in these Terms shall exclude or restrict the Seller’s liability for death or personal injury resulting from the Seller’s negligence.
9.2. The Seller shall under no circumstances be liable to the Customer for any claim (whether arising in or for contract, tort (including negligence) breach of statutory duty, misrepresentation or otherwise) under or in connection with these Terms for any indirect, special or consequential loss or for any loss of anticipated profit or third party claims howsoever arising either from breach or non-performance of any of its obligations under the Contract or from the supply of or intended used of the Goods, even if the Seller has been advised of the possibility of such potential loss.
10.1. The Customer consents to the processing by or on behalf of the Seller of personal data (as defined by the Data Protection Act 1998) supplied by the Customer or held by the Seller for the purposes of administering the Customer’s account and processing any orders. The Customer consents to the use of such personal data for direct marketing purposes. The Customer’s statutory rights under The Data Protection Action 1998 remain unaffected.
10. Data Protection
11.1. The Seller shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the Goods by the Seller being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of the Seller.
11. Force Majeure
12.1. The construction, validity and performance of the Contract shall be governed by English Law and the parties agree to submit to the jurisdiction of the English courts.