Terms & Conditions of Sale
Effective from 01/09/2010 1. GENERAL 1.1. In this document the following terms have the following meanings:
a) “The Company”, “Us”, “We” and “Our” refers to Atom Supplies Ltd, trading as Master of Malt
b) “The Purchaser”, “You” and “Your” refers to the person(s), firm or company entering into, or intending to enter into, a contract with the Company.
c) “The Product” refers to any product supplied, or to be supplied by The Company to the Purchaser by any means under this agreement.
d) “Due Date” refers to the date of payment defined by the Company to the Purchaser. It is deemed to be the date that the order is placed unless credit facilities have previously been agreed between the Purchaser and the Company.
e) “Working Days” refers to days that are not Saturdays, Sundays or public holidays.
f) “Terms” refers to any provision forming part of the contract, set out in this document, and any other special Terms agreed in writing between The Company and The Purchaser and signed by a director of the Company.
1.2. The Company reserves the right to modify the Terms at any point, upon giving notice to the Purchaser via email, postal mail, fax, telephone or updating the terms and conditions contained within the website. Such modifications come into effect immediately after first notification; however they will not affect any contract between the Company and the Purchaser entered into prior to these modifications.
1.3. If at any time any Term of this contract is or becomes illegal, invalid or unenforceable in any way, this shall not affect the legality or enforceability of the remaining Terms.
1.4. The Company will not be bound by clerical or arithmetical errors in documents produced and/or issued by us.
1.5. The Purchaser shall inform the Company immediately of any change in legal status, including but not limited to, changes of ownership and control and changes under the Companies Act. Whether to continue trading with the Purchaser shall be at the discretion of the Company, which reserves the right to recover images, content and any other materials supplied.
1.6. The Purchaser many not replicate any part of these terms and conditions of sale for use with third parties without the prior written consent of the Company. The Company reserves the right to replicate and use these terms and conditions with our affiliates, resellers, partners and any other associated individuals or companies without the Purchaser’s consent.
1.7. The headings used in these terms and conditions are for ease of reading only and shall not have any influence on interpretation
2.1. Placement of orders by the Purchaser to the Company indicates acceptance of these terms and conditions of sale.
2.2. The Company reserves the right to make any changes to the product and / or its packaging required to conform with any relevant statutory or EU Law requirements without prior notification.
2.3. The Company reserves the right to discontinue or modify the ingredients, preparation and / or presentation of the Products without notice.
2.4. Cancellation or modification to any contract by the Purchaser is under the terms that the Purchaser is liable to reimburse the Company for any resulting loss including but not limited to loss of profits and costs incurred and only with prior written agreement from the Company. Any product returned by the Purchaser without the Company’s prior written consent will not be accepted for credit and we reserve the right to charge the appropriate carriage fee to re-send.
3. PRICE 3.1. The price of each Product shall be the most recent price quoted on the website at the date of acceptance of the order by the Company, unless a specific quotation has been agreed in writing by the Company for a particular transaction.
3.2. The Company reserves the right to adjust prices at any time upon notification to the Purchaser via email, postal mail, fax, telephone or by updating the prices quoted on the website. It is the responsibility of the Purchaser to ensure that they are aware of the current prices.
3.3. The appropriate processing and packaging costs are included in the prices quoted. Delivery costs will be quoted separately if applicable. The same rights apply to these as to all other products.
3.4. Prices are exclusive of VAT at the rate at the prevailing tax point unless otherwise stated
4. PAYMENT 4.1. The Purchaser shall pay in full in pounds sterling for all invoiced items and Products by the Due Date.
4.2. Any discounts, allowances, credits or other sums or payments which would be owed from the Company to the Purchaser will only be allowed or made by the Company if the Purchaser pays in full all account(s) as in accordance with the terms of payment as laid out in this document and by the Due Date.
4.3. If the Purchaser fails to pay, in full, for all Products and invoiced items by the Due Date and in accordance with the Terms of payment the Company reserves the right without prejudice to:
a) Cancel the contract and suspend and / or cancel any further deliveries and / or the performance of any further contracts
b) Withhold or cancel any or all discounts, rebates, allowances, credits and / or any other sum or payments which would otherwise be owing from the Company to the Purchaser
c) Withdraw any or all credit facilities previously agreed and require that any further orders are paid for upon placement of the order
d) Charge interest on any amount outstanding without further notice at an annual rate of 8% above the Bank of England’s base rate. Interest shall accrue daily from the Due Date up to and inclusive of the actual day of payment.
e) Recover any legal costs incurred by the Company in securing the outstanding amount including, but not limited to, fees spent on legal firms and debt collection agents.
f) Recover images, content and any other materials supplied by us to the Purchaser, the title of which has not passed to the Purchaser as set out in Clause 6.2
g) Charge the Purchaser any reasonable storage costs accrued in respect of the Product being retained in storage
h) Where possible retain as security all or any property or product belonging to the Purchaser that is, at that time, in the Company’s possession.
i) Sell any property or Product retained in Clause 4.3.h in the event that the Purchaser fails to make payment for the outstanding amount along with any other accrued costs, including but not limited to any amounts accrued in Clause 4.3.d, 4.3.e, 4.3.g subject to the Company trying to obtain the best available price for such items.
4.4. The Purchaser may not without prior written consent set off or deduct in advance any sums payable from us to you against any sums owed by you to us. The Company is authorised to set off sums or any amounts thereof due from us to you and you agree that this shall be a good and valid discharge without the necessity for further permission from you.
5.1. Storage of alcohol on premises or other actions not covered by the Company’s alcohol licence, either of products supplied by us or others, will result in the Purchaser requiring their own licence. Assessing whether a licence is needed and obtaining a licence where required remains the sole responsibility of the Purchaser and the Company will not be liable for actions undertaken by the Purchaser without the appropriate licence.
5.2. The Products are sold under the condition that they will at no point become the subject of duty evasion. Ensuring that any relevant duties or local taxes have been paid remains the sole responsibility of the Purchaser and the Company will not be liable for any actions undertaken without the appropriate duties having been paid subsequent to sale.
5.3. If the Company suspects that the condition in Clause 5.2 has been or will be breached by the Purchaser the Company reserves the right to do any or all of the following:
a) Supply further orders only on a duty-paid basis
b) Suspend and / or cancel in whole or part any further deliveries to the Purchaser, with no further liability to the Purchaser
c) Require that the Purchaser supply the full details of the persons or companies to whom the Products were resold; including name, address, product ID and quantity supplied, and the Purchaser agrees to do this.
5.4. The storage and dispensing of the Product must follow the best industry standards of hygiene and fully conform to all relevant laws and regulations. You shall only resell the product in good condition.
5.5. For the purpose of quality control the Purchaser must only serve the product within the time limit recommended by the Company and unless prior written consent has been given may not sell or dispose of the product other than to the Purchaser’s retail customers.
5.6. The Product’s bottles and containers shall at all times only be used to store and / or dispense the Product. No other product or substance shall be placed into the bottles or containers at any time after sale to the Purchaser.
5.7. The Company shall be allowed access to the Purchaser’s premises at any time during normal working hours to inspect Products, promotional materials and equipment and facilities to ensure compliance with this contract.
5.8. Parties buying the Product from Purchaser shall be subject to the same or equivalent conditions set out in Clause 5
6.1. The Purchaser shall not undertake in any way any action or do anything that is calculated or likely to harm the Company’s reputation or the reputation of the Products or their brands.
6.2. Images, content and all other materials and intellectual property supplied by the Company in connection with a contract will remain the property of the Company or its licensor. We give you permission to use these for the purposes of the contract however they, including the concepts, ideas and know-how embodied therein, should only be used as supplied and should not be modified, reproduced, distributed, have derivative works made of them or be exploited in any other way unless expressly agreed. The Company reserves the right to reclaim these resources at any time.
6.3. Any reference to or use of the Company’s or its licensors’ trade marks shall be in a manner and form approved by us and accompanied with acknowledgement that the trade mark belongs to the Company or its licensors. No trade marks are to be used in relation to the products without the Company’s prior written consent.
6.4. The Purchaser must notify the Company of any infringement or wrongful use of our intellectual property which comes to the Purchaser’s attention as soon as is reasonably practical and the Purchaser will co-operate with the Company at all times in the prevention of such infringement.
7. RISK AND TITLE 7.1. Risk of damage to or loss of the Product becomes the Purchaser’s upon acceptance of delivery of the Product by the Purchaser or an employee or agent acting on its behalf signified by the signing and dating of the Company’s or its agent’s delivery note by the Purchaser, or in instances where the Product is collected directly by the Purchaser or an agent or carrier on their behalf, at the time of collection which is signified by the signing and dating of the Company’s or its agent’s collection note by the Purchaser or an agent acting on its behalf.
7.2. Ownership of the Product shall remain with the Company until it has received payment in full of all sums owing from you to us on any account and on whatever grounds. In such instances the Purchaser is permitted in the ordinary course of business to sell the Product under the express condition that the proceeds of sale are accounted for to the Company and are not mixed with any other moneys or paid into an overdrawn bank account and are at all times identifiable as the Company’s money. Until such resale the Product must be kept separate from any goods belonging to the Purchaser or other third parties and properly stored, protected and marked as our property.
7.3. At any time until title in the Product passes to the Purchaser, the Company may revoke the Purchaser’s authority to sell the Product granted in Clause 7.2 and recover and resell the Product. The Company therefore may at any time require the Purchaser to deliver the Product to us as the Company decides and upon failure to do so immediately the Company or its servants or agents shall be entitled to access the Purchaser’s premises or those which the Purchaser has right to access and in which the Product is stored or thought to be stored to repossess the Product at any time.
7.4. Any payment made by the Purchaser in return for Products supplied under a contract with the Company shall be allocated first to Products which at the date of receipt of payment by us have been disposed of by you. Should the amount paid by the Purchaser exceed the value of the aforementioned Products the remaining balance shall be allocated to any other of the Products supplied to the Purchaser by the Company and it shall remain at the Company’s absolute discretion to which Products the balance shall be allocated.
8. DELIVERY 8.1. All delivery dates are estimates only and the Company shall not be liable for any losses, damages or expenses suffered by the Purchaser or any third party howsoever arising either directly or indirectly from failure to meet any delivery date estimate.
8.2. Failure to deliver must be notified to the Company within 5 working Days of the intended date of delivery supplied to the Purchaser by the Company. Late delivery or non-delivery will not constitute grounds for termination of the contract and on time delivery shall not be of the essence of the contract.
8.3. It is the responsibility of the Purchaser or a carrier or agent acting on its behalf to satisfy themselves with any “Best Before” dates of the Products upon delivery. If the Purchaser is not satisfied with such dates it should immediately and in writing refuse acceptance of delivery of the concerned Products.
8.4. It remains the responsibility of the Purchaser or any employee or agent acting on its behalf upon delivery to inspect the Products to ensure that the Products received are all present, correct and undamaged with the correct pricing. Should any of the former listed not be true the following action must be taken by the Purchaser:
a) The exception(s) should be recorded on the delivery note before legibly signing and writing the name in capital letters and dating it.
b) Any damaged or incorrect Products or packaging should be retained for future inspection by the Company or its agents
c) The accompanying documents with the exception(s) recorded on them should be retained for future inspection by the Company or its agents
d) The Company and any agent of the Company involved in delivery or collection should be notified of the exception within 24 hours following delivery or collection.
8.5. Where the Product is collected by the Purchaser directly or a carrier or agent on its behalf it remains the responsibility of the Purchaser or its carrier or agent to inspect the Products upon collection to ensure that all Products are present, correct and undamaged. Should any of the former not be true the following action must be taken by the agent, carrier or Purchaser that is collecting the Products:
a) The exception(s) should be recorded on the collection note before signing and legibly writing the name in capital letters and dating it.
b) Any damaged or incorrect Products or packaging should be retained for future inspection by the Company or its agents
c) The accompanying documents with the exception(s) recorded on them should be retained for future inspection by the Company or its agents
d) The Company should be notified of the exception at the time of collection.
8.6. Upon acceptance of delivery or collection the Company or its authorised carrier or agent’s delivery or collection note should be signed and the name written legibly in capital letters and dated along with any other information specified in Clause 8 by the Purchaser or an authorised employee, agent or carrier acting on its behalf. The return of this signed delivery or collection note to the Company will constitute evidence of delivery and as such it will constitute unquestionable proof of receipt of the correct undamaged and correctly priced Products unless otherwise specified on the note as instructed in Clause 8.
9.1. Where it has been agreed that the Product is to be carried into the Purchaser’s premises by the Purchaser or an agent or courier acting on its behalf, this is at the sole risk of the Purchaser and the Company will not be liable for any loss, damage or injury that may occur.
9.2. The Company shall not be liable for any damage, loss or claim caused at any time on the Purchaser’s property or in the course of any delivery caused by fault or negligence of the Purchaser or its employees, agents or any other party acting on the Purchaser’s behalf.
9.3. Subject to successful completion of Clause 8 by the Purchaser the Company shall replace any Product that was damaged while at the Company’s risk or deliver any Product not delivered, or at the Company’s discretion credit the Purchaser with the price of the Product in such instances of damage or non-delivery.
9.4. Unwanted goods that have been correctly supplied will only be accepted for return at the Company’s discretion. The Purchaser must contact the Company for authorisation before returning any items and it is the responsibility of the Purchaser to ensure that goods are returned unopened and in a re-saleable condition. The Company regrets it is unable to refund any carriage costs.
9.5. The Company will not be liable for any loss or damage whatsoever incurred after acceptance of delivery as defined in Clause 7.1. Where damage to or loss of the Product has incurred subsequent to the liability for such passing to the Purchaser, the Purchaser shall be liable to pay the Company for such Products. This includes, but is not limited to, circumstances where loss or damaged has incurred by way of fire or theft howsoever arising. In such instances the Company is entitled to a sum equivalent to any damage to or loss of the Products or any other of the Company’s property as defined in these terms and conditions from the proceeds of any insurance claim or other claim made by the Purchaser or on its behalf.
9.6. Except as provided in this Clause 9 the Company will not be liable for any loss or damage of any nature or cause, however no section of these terms and conditions will exclude or restrict liability of the Company for death or personal injury resulting from negligence of the Company, its employees or agents.
9.7. Claims by the Purchaser relating to a defect in the quality, condition or manufacture of the product (whether or not delivery is refused) should be notified to the Company in writing within 24 hours. For defects not noticeable upon reasonable inspection of the Product at the time of delivery or collection these should be notified to the Company in writing within 24 hours of discovering the defect. If delivery is accepted and the Purchaser does not notify the Company accordingly then:
a) The Purchaser does not have the right to reject the Product
b) The Company shall have no liability for such defect
c) The Purchaser shall be required to pay the price for the Product as if it had been delivered in accordance with the contract
9.8. The Company will not be liable for claims against the quality or condition of the Product where the Product has not been stored and / or dispensed following the Company’s guidelines, including but not limited to storage at the recommended temperature as defined by the Company, using industry best practices of hygiene to store and dispense the Product and serving the Product within the recommended time limit, as in accordance with Clauses 5.4 and 5.5.
9.9. The Company’s liability for any Products deemed to be defective in manufacture or with defective containers shall be limited to the replacement of the defective Products or at the Company’s discretion crediting the Purchaser with the invoiced price of the defective products. The Products are sold without any other guarantees or representations and any warranties or conditions contradictory to this either statutory or otherwise express or implied are excluded to the greatest extent permitted by law. The exemptions from the provisions of Sections 13, 14 and 15 of the Sale of Goods Act 1893 ("the 1893 Act") (as inserted by Section 10 of the Sale of Goods and Supply of Services Act 1980 ("the 1980 Act")) contained in this Clause 9.6 shall, in all cases other than a contract for the international sale of goods (as defined in the 1980 Act), be subject to the restrictions on such exemptions contained in Section 55(4) of the 1893 Act (as inserted by Section 22 of the 1980 Act). Furthermore, nothing in this Clause shall serve to exclude the Company’s implied undertakings as to title under Section 12 of the 1893 Act (as inserted by Section 10 of the 1980 Act).
9.10. The Company shall at all times be exempt from liability for damage or loss to third parties howsoever associated as a direct or indirect result of the Product. The Purchaser shall indemnify the Company against any such loss or damage.
10.1. Any information disclosed to the Purchaser by the Company or on the Company’s behalf about the Company, its customers, its associated companies and any other parties prior to, during or after the existence of the contract shall remain the Company’s confidential information and shall not be used or disclosed by the Purchaser to any third party at any time. At any time upon request the Purchaser shall cease using such information and / or return it to the Company.
11. FORCE MAJEUR 11.1. The Company reserves the right without liability or prior notification to suspend or terminate part of, or all of the contract where external impediments would make it impossible or significantly more difficult to fulfil the contract. These include but are not limited to strike, lockout, war, riot, crime, loss or failure of machinery, insufficient supply of gas water and electricity, government intervention, export restriction, act of God, adverse weather, shortage of carriage facilities and changes to law or regulations that would make fulfilment of all or part of the contract illegal.
11.2. If the company exercises the rights provided in Clause 11.1 then the Purchaser may within 7 days cancel the contract following successful completion of the following conditions:
a) The Company must be paid in full for Product supplied up to and including the date of suspension by the Company
b) The Company shall be paid for all expenses incurred up to and including the date of suspension
11.3. Where the contract is cancelled, either by the Company or the Purchaser, the Company’s liability (if any) is limited to repayment of any payment received from the Purchaser less the proper and reasonable charges and expenses already incurred up to and including date of suspension or cancellation.
12.1. In the event of a material breach, continuing breach or series of continuous breaches of these terms and conditions or any express or implied part of the contract by the Purchaser the Company may by written notice immediately suspend and / or terminate the contract.
12.2. If any of the following becomes true or the Company believes that it/they may become true:
a) The Purchaser becomes bankrupt, goes into receivership or goes into liquidation for reasons other than amalgamation or reconstruction without insolvency
b) The Purchaser makes any arrangement or composition with its creditors
c) The Purchaser becomes subject to an examinership or government order
d) A receiver, trustee, examiner or liquidator is appointed over the Purchaser or any of its property or assets
e) The Purchaser becomes generally unable to meet its debts as they fall due or suspends payments
f) The Purchaser exceeds its credit limit or breach any credit terms provided by the Company
g) The Company ceases, or threatens to cease, business with the Company
h) There is a material change in the constitution of the Company
Then we reserve the right to do any of the following either alone or in combination:
a) Cancel the contract or any contract between the Company and the Purchaser
b) Apply a surcharge for the supply of Products
c) Cease any further deliveries without liability to the Purchaser
d) Suspend performance of the Contract or any other Contract between the Purchaser and the Company for a period of time that the Company shall deem fit
e) Insist on immediate payment for any Products already delivered but not yet paid for
13.1. Following data protection legislation Purchasers that are not companies or corporate bodies may request in writing for a copy of certain personal records held about them by the Company
13.2. For the purposes of training, security, more efficient communication and any other reason the Company may record telephone conversations between the Company and the Purchaser and may store any correspondence of any nature for an unlimited period of time without notification.
13.3. The Purchaser agrees that the Company may obtain and retain references from third parties as to the Purchaser’s financial standing in order to protect itself and help prevent fraud. This includes but is not limited to obtaining information from banks and licensed credit reference agencies.
13.4. The Company reserves the right to provide credit reference agencies with the details of any non-payments where the Company makes a demand but does not receive a satisfactory proposal for repayment.
13.5. The Company will not disclose details about the Purchaser, its financial standing or its account without permission unless:
a) The Company is legally obliged or it is in the public interest to do so
b) In order to recover or prevent loss to the Company
c) In connection with any other exception provided in Clause 13
13.6. The Company will seek written permission from the Purchaser before replying to any bank reference received from outside of the United Kingdom concerning the Purchaser’s creditworthiness
13.7. Information about the Purchaser, its account and any other data about the Purchaser may be stored in the Company’s database or IT system for use by the Company.
14.1. Clauses 4, 5, 6, 7, 9, 10 and 13 shall still apply subsequent to any termination or expiration of any contract between the Company and the Purchaser.
15. GOVERNING LAW 15.1. These Terms and Conditions of Sale along with any other contract entered into between the Company and the Purchaser are to be construed and governed in all respects under English law. The Courts of England shall have exclusive jurisdiction to settle any dispute in connection with these Terms and Conditions, any Contract of which these Terms and Conditions are part, or any other Contract of any nature between the Company and the Purchaser.