Trade Terms of Business

1. Interpretation

1.1 In these Terms, the following definitions apply:

• As New Condition: that condition as would permit the relevant Goods or Sale or Return Stock (as the case may be) to be sold in the ordinary course of the Company’s business without rebate, discount or other allowance and without departure from the Company’s normal terms of business.
• Business Day: a day (other than a Saturday, Sunday or public holiday in England and Wales) when banks in London are open for business.
• Collection Date: has the meaning ascribed to it in clause 4.2.2.
• Collection Location: has the meaning ascribed to it in clause 4.2.2.
• Collection Notification: has the meaning ascribed to it in clause 4.2.2. 
• Company: Atom Supplies Limited (trading as Master of Malt, Maverick Drinks, Atom Brands, Atom Group), a company registered in England and Wales under company number 3193057 having its registered office at Unit 1, Ton Business Park, 2-8 Morley Road, Tonbridge, Kent, TN9 1RA and the VAT registration number GB 662241553.
• Consignment Note: has the meaning ascribed to it in clause 4.2.1.
• Content: all content including but not limited to text, product descriptions, tasting notes, information, data, software, URLs, executable code, product images, other non-product images, audio, or video material, in whole or in any part, in any medium or form which is displayed on or which otherwise forms part of and as published on the Website and/or the Spirits List and which wholly or partly embodies, consists of, comprises or includes Intellectual Property Rights belonging to the Company.
• Contract: means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these Terms.
• Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal or de facto power to direct or cause the direction of the general management of a company, and the expression Change of Control shall be construed accordingly.
• Customer: the person or firm who purchases the Goods from the Company.
• Delivery Note: has the meaning ascribed to it in clause 4.1.1.
• Difference: has the meaning ascribed to it in clause 7.12.
• Direct Debit: the automated payments service operated by Bacs Payment Schemes Limited.
• Duty Inclusive Price: the price for Goods which is inclusive of United Kingdom excise duty on alcoholic liquor (or any replacement tax or duty).
• Ex-Duty Price: a price for the Goods which does not include United Kingdom excise duty on alcoholic liquor.
• Force Majeure Event: any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors or change in law or regulation.
• Goods: the goods (or any part of them) set out in the Order.
• In Good Standing:  that: (i) the relevant Customer has paid all invoices raised by the Company on or before the expiry of the credit terms set by the Company during the previous period of twelve months (including any truncated credit terms imposed pursuant to clause 9.3(iv)); (ii) the relevant Customer’s credit account has not exceeded the credit limit set by the Company in respect of that Customer during the previous period of twelve months (including any reduced credit limit imposed by the Company pursuant to clause 9.3(iv)); and (iii) the relevant Customer has not become subject to any of the events listed in clause 9.2.
• Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Liabilities: liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).
• Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order (or as amended with the written agreement of the Company) or as submitted online electronically to the Company using the Website (as applicable).
• Perishable Goods: those Goods which are syrups (including honey), cordials, soft drinks, mixers, food items (whether fresh or dried, such as garnish) or beers (or which otherwise bear a ‘use by’, ‘best before’ or similar date on their packaging).

• Restocking Fee: a fee equal to 25% of the total Order value.

• SAAD: means the Simplified Administrative Accompanying Document, the form which must accompany duty paid goods moving within the European Union (pursuant to Regulation (EEC) 3649/92).
• Sale or Return Stock: has the meaning ascribed to it in clause 6.7.
• Seasonal Goods: Advent calendars, Christmas crackers and such other Goods as the Company determines (acting reasonably) are sold by the Company principally in connection with the celebration of Christmas (and Season shall be construed accordingly).
• SOGA 1979: the Sale of Goods Act 1979.
• Spirits List: means the spirits list of drinks available to the Company’s customers and prospective customers which is maintained and updated by the Company from time to time.

• Storage Fees: a fee equal to £2.50 per whole or any part day, per whole or any part pallet of Goods (or such other amount as the Company may determine in its sole discretion from time to time).

• Terms: the terms of business set out on this page, as amended from time to time in accordance with clause 13.7.
• Third Party Logistics Services: any services whereby the Company processes, picks, and arranges delivery for and on behalf of the Customer in connection with orders placed with the Customer by its customers, whether such services are provided to the Customer on an exclusive or non-exclusive basis, and shall include all such services colloquially known as dropship, 3PL, fulfilment services or other similar terminology.
• Warranty Period: has the meaning ascribed to it in clause 5.1.
• Website: the website operated by the Company having the uniform resource identifier www.masterofmalt.com (or any replacement website).

1.2 In these Terms:

1.2.1 references to a person include a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2 references to a party include that party’s personal representatives, successors or permitted assigns and references to the parties are to the Company and the Customer;

1.2.3 references to a statute or statutory provision are references to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.2.4 unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

1.2.5 unless the context otherwise requires, references to a clause are references to a clause of these Terms;

1.2.6 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.7 subject to clause 13.3, references to writing or written are references to e-mails.

2. Basis of Contract

2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 No employee of the Company (who is not also a director of, or in-house counsel to, the Company) has any authority (actual or otherwise) to negotiate any changes to these Terms or to enter into any contract for the sale of Goods to the Customer on any terms of business other than these Terms. No variations of or additions to or substitutions for these Terms, even if included or referred to in the document or other communication on, in or by which an Order was placed, shall be binding on the Company unless specifically accepted by a director of, or in-house counsel to, the Company in writing.

2.3 An Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the Order is complete and accurate.

2.4 The Order shall only be deemed to be accepted by Company on the earlier of: (i) the Company issuing a written acceptance of the Order to Customer; or (ii) the Company notifying the Customer that the Goods are ready for collection, at which point the Contract shall come into existence. Each Order (once accepted) shall constitute a separate Contract.

2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.

2.6 Save for where otherwise expressly stated in these Terms, any samples, drawings, descriptive matter, advertising material produced by the Company and any illustrations contained in the Company’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force. The Contract is not a sale by sample.

2.7 A quotation for the Goods given by the Company shall not constitute an offer. Prices set out in quotations are subject to change.

3. Goods

3.1 For Orders placed on and completed via the Website (including when an authorised representative of the Company completes an online Order on behalf of the Customer on the Customer’s instructions), the Goods are described on the Website. For Orders placed with the Company, but not via the Website, the Goods are described in the Spirits List. In the event of any conflict between the description of the Goods which is set out on the Website or the Spirits List (as the case may be) and any description which is set out in the Company’s catalogues or brochures or which is otherwise communicated to the Customer (whether in writing or otherwise), the description which is set out on the Website or the Spirits List (as the case may be) shall prevail.

3.2 The Company reserves the right to amend the specification, packaging and appearance of the Goods without notice to the Customer:

3.2.1 if required by any applicable statutory or regulatory requirements; or

3.2.2 if the specification of the Goods is changed by the Company’s suppliers and the Company no longer has adequate stocks of Goods which pre-date the change in order to fulfil the Order.

3.3 The Company reserves the right to discontinue any product without notice to the Customer.

4. Delivery or Collection

4.1 If the parties agree that the Company is to arrange for the delivery of the Goods to the Customer:

4.1.1 the Company shall ensure that each consignment of the Goods is accompanied by a packing note (a Delivery Note) which shows the date of the Order, the Order number and the type and quantity of the Goods;

4.1.2 the Company shall arrange for the delivery of the Goods to the location set out in the Order or such other location as the parties may agree in writing (the Delivery Location) at any time after the Company notifies the Customer that the Goods are ready for delivery.  For the avoidance of doubt, the cost of delivery is not included in the price of the Goods and shall be payable by the Customer in addition to the price of the Goods;

4.1.3 subject to clause 4.1.7, delivery of the Goods shall be completed at the point in time at which the vehicle containing the Goods arrives at the Delivery Location;

4.1.4 any dates quoted for the delivery of Goods by the Company to the Delivery Location are approximate only, and the time of delivery is not of the essence. The Customer shall notify the Company in writing as soon as practicable in circumstances where Goods are not delivered to the Delivery Location on the date quoted for delivery of the Goods (or on or before the last date for delivery, where a range of potential delivery dates is provided by or on behalf of the Company);

4.1.5 without prejudice to clause 4.1.4, the Company shall not be liable for any Liabilities arising from or connected with a delay in delivery of the Goods or a failure to deliver the Goods, unless such delay in delivery or failure of delivery is proven to be the direct result of solely the Company’s negligence or wilful misconduct;

4.1.6 and the Delivery Location is within the European Union, the Customer acknowledges and agrees that the haulier or freight forwarder appointed by the Company will act on behalf of the Customer and represent it before the relevant competent fiscal or customs authorities of the destination country for the purposes of customs matters as it may be necessary, such customs matters include but are not limited to declaring and making payment for duties, taxes, levies or imposts relating to the import of the Goods to the destination country as chargeable by the fiscal or customs authorities of the country of destination, submitting prescribed documentation relating customs declaration and performing all such formalities as required to satisfy relevant customs and fiscal requirements of the relevant destination country;

4.1.7 and the Customer fails to accept delivery of the Goods:

(i) delivery of the Goods shall be deemed to have been completed and the Contract fulfilled at the time at which the Company first attempted delivery of the Goods (and all costs and expenses of that deemed delivery, of the return of the Goods to the Company and of all future deliveries or returns shall be for the account of the Customer);

(ii) the Company shall have no further obligation to attempt to deliver the Goods to the Customer and it shall be for the Customer to arrange collection of the Goods from the Company;

(iii) the Company shall have the right to (and without any liability to the Customer):

(a) charge the Customer for all costs and expenses incurred by the Company in attempting to deliver the Goods to the Customer and returning the Goods back to the Company;

(b) charge the Customer Storage Fees from the time of deemed delivery referred to in clause 4.1.7(i) until such time that delivery or collection of the Goods actually occurs or the Goods are returned to stock by the Company pursuant to clause 4.1.7(iii)(c); and

(c) in circumstances where the Goods have not been collected by the Customer within fourteen days of the time of deemed delivery referred to in clause 4.1.7(i), at its sole discretion and at any point after the expiry of that fourteen days period, return the Goods to stock and charge the Customer the Restocking Fee; and

(iv) for the avoidance of doubt and without any right to double recovery, in the event that the Company decides to exercise its right under clause 4.1.7(iii)(c), where the Customer has already made any payment to the Company under the Contract, the Company shall refund that payment to the Customer net of all costs and expenses incurred by the Company, including any costs and expenses incurred in attempting to deliver the Goods to the Customer and returning the Goods back to the Company, the Restocking Fee and all Storage Fees; and

4.1.7 the Company may deliver the Goods by instalments. In such circumstances, each instalment shall constitute a separate Contract and any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalments that form part of the Order.

4.2 If the parties agree that the Customer is to arrange for the collection of the Goods from the Company:

4.2.1 the Company shall ensure that each consignment of the Goods is accompanied by a packing note (a Consignment Note) which shows the date of the Order, the Order number and the type and quantity of the Goods;

4.2.2 the Customer (or the customer’s agent) shall collect the Goods from the Company’s premises at Master of Malt, Unit 3, 2-8 Morley Road, Tonbridge, TN9 1RA or such other location as may be advised by the Company to the Customer (the Collection Location). The Company shall notify the Customer in writing of the Business Day on which the Goods shall be available for collection from the Collection Location (the Collection Notification). The Goods shall be collected by the Customer on the Business Day designated in the Collection Notification (or within three Business Days after the date of the Collection Notification where the Company does not give the Customer at least three Business Days’ advance notice of availability in the Collection Notification) (the Collection Date);

4.2.3 subject to clause 4.2.7, collection of the Goods shall be completed at the time at which the Goods pass over the building’s threshold at the Collection Location;

4.2.4 any anticipated dates for the availability of the Goods for collection given before the Company gives the Collection Notification are approximate only, and shall not be of the essence;

4.2.5 the Company shall not be liable for any failure to make the Goods available for collection on the Collection Date unless such delay or failure is proven to be the direct result of solely the Company’s negligence or wilful misconduct;

4.2.6 and the Customer subsequently delivers or exports the Goods (whether by itself or by engaging a third party haulier or freight forwarder) to outside of the United Kingdom, the Customer shall be solely and absolutely responsible for and the Company shall in no circumstances be liable for any and all customs or fiscal matters relating to the export from United Kingdom and import to the destination country of the Goods, including but not limited submitting prescribed documentation relating customs declaration and performing all such formalities as required to satisfy relevant customs and fiscal requirements of the relevant country;

4.2.7 and the Customer fails to collect the Goods from the Collection Location on the Collection Date then:

(i) collection of the Goods shall be deemed to have been completed on the Collection Date and the Contract fulfilled on that date; 

(ii) the Company shall have no obligation to attempt to deliver the Goods to the Customer;

(iii) the Company shall have the right to (without any liability to the Customer): 

(a) charge the Customer Storage Fees for storing the Goods with effect from the Collection Date until the actual date of collection by the Customer or the date that the Company decides to return the Goods to stock pursuant to clause 4.2.7(iii)(b); and

(b) in circumstances where the Goods have not been collected by the Customer within fourteen days of the Collection Date, at its sole discretion and at any point after the expiry of that fourteen day period, return the Goods to stock and charge the Customer the Restocking Fee; and

(iv) for the avoidance of doubt and without any right to double recovery, in the event that the Company decides to exercise its right under clause 4.2.7(iii)(b) above, where the Customer has already made any payment to the Company under the Contract, the Company shall refund that payment to the Customer net of any Restocking Fee and all Storage Fees;

4.2.7 the Company may make the Goods available for collection in instalments. In such circumstances, each instalment shall constitute a separate Contract and any delay in making an instalment available for collection or defect in an instalment shall not entitle the Customer to cancel any other instalments that form part of the Order; and

4.2.8 (without prejudice to any rights available to the Company at law) the Company shall suffer or incur no Liabilities to the Customer arising from or in connection with any failure by any haulier or freight forwarder to deliver the Goods to the Customer in accordance with the terms agreed between the Customer and any such haulier or freight forwarder, and no such failure shall prejudice or impair the Company’s right to be paid for the Goods without delay and in full. 

4.3 If the Company is liable pursuant to clauses 4.1.5 or 4.2.5, its liability shall be limited to the cost of replacing the Goods or issuing a credit note for the value of the Goods to the Customer (at the Company’s sole discretion).

4.4 The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 25% less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice.

5. Quality

5.1 Subject to the remaining provisions of this clause 5, the Company warrants that on completion of delivery or collection (as the case may be) and (except in the case of Perishable Goods) for a period of 6 months from the date of completion of delivery or collection (as the case may be) (the Warranty Period), the Goods shall:

5.1.1 conform in all material respects with their description;

5.1.2 be free from material defects in design, material and workmanship;

5.1.3 be of satisfactory quality (within the meaning of the SOGA 1979); and

5.1.4 be fit for any purpose held out by the Company.

5.2 Subject to the remaining provisions of this clause 5, if:

5.2.1 the Customer gives notice in writing to the Company during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 5.1;

5.2.2 the Company is given a reasonable opportunity to examine such Goods, and the Customer provides all information relating to the Goods as the Company reasonably requires (including photographic evidence of any temperature control stickers placed on any packaging of the Goods);

5.2.3 the Company determines, acting reasonably, that some or all of the Goods do not comply with the warranty set out in clause 5.1; and

5.2.4 the Customer (if asked in writing to do so by the Customer) returns such Goods to the Collection Location at the Company’s cost, 

the Company shall, at its option, replace the Goods which do not comply with the warranty set out in clause 5.1, or refund the amount paid for those Goods. In the event that the Customer has returned Goods to the Company and the Company finds that the Goods are not defective, the Company shall return the Goods to the Customer at the Customer’s cost.

5.3 The Company shall not be liable for any loss or damage that the Customer suffers as a result of the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following circumstances:

5.3.1 the Customer is deemed to have accepted the Goods pursuant to section 35 of the SOGA 1979;

5.3.2 the Goods’ failure to comply with the warranty set out in clause 5.1 is trivial or negligible;

5.3.3 the Customer makes any further use of such Goods, or resells such Goods, after giving notice in accordance with clause 5.2;

5.3.4 the Goods’ failure to comply with the warranty set out in clause 5.1 arises after risk in the Goods has passed to the Customer in accordance with clause 6.1, except in circumstances where such defect has arisen as a direct result of the Company’s negligence;

5.3.5 the Goods’ failure to comply with the warranty set out in clause 5.1 arises because the Customer (or any agent, representative, worker, employee of the Customer or any third party instructed by the Customer) failed to follow the Company’s instructions regarding the handling and/or storage of the Goods (if any) or best trade practice regarding the same. Without prejudice to the generality of the foregoing, the Company shall not be liable for any loss or damage that the Customer suffers as a result of the Goods’ failure to comply with the warranty set out in clause 5.1 in circumstances where the Goods have been exposed to temperatures whilst in storage or transit in excess of the maximum permissible temperatures notified by the Company to the Customer (if any) or best trade practice regarding the same;

5.3.6 the Goods’ failure to comply with the warranty set out in clause 5.1 arises as a result of a Force Majeure Event which takes place after risk in the Goods has passed to the Customer in accordance with clause 6;

5.3.7 the defect arises as a result of an act or omission of the Customer (or any agent, representative, worker or employee of the Customer or any third party instructed by the Customer); or

5.3.8 (in the case of the warranty set out in clause 5.1.1 only) the Goods differ from their description as a result of changes made to the specification of the Goods by the Company in accordance with clause 3.2.

5.4 The Company shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 5.1 in circumstances where the Customer fails to comply with the terms set out in clause 5.2.

5.5 The terms implied by sections 13 to 15 of the SOGA 1979 and all other warranties concerning the nature, description, quality and fitness for purposes of the Goods are, to the fullest extent permitted by law, excluded from the Contract.

5.6 These Terms shall apply to any repaired or replacement Goods supplied by the Company.

6. Title, risk and returns

6.1 Save as set out below, and subject to clause 6.9:

6.1.1 in circumstances where the Goods are to be delivered to the Customer, risk in the Goods shall pass to the Customer at the time at which the vehicle containing the Goods first arrives at the Delivery Location (even if delivery is not completed);  

6.1.2 in circumstances where the Goods are to be collected by the Customer, risk in the Goods shall pass to the Customer at the time at which the Goods pass over the building’s threshold when being collected by the Customer from the Collection Location or (if earlier) close of business on the Collection Date; and

6.1.3 in circumstances where the Goods are returned to stock by the Company pursuant to clause 4.1.7(iii)(c) or 4.2.7(iii)(b), risk in the Goods shall pass back to the Company at close of business on the day on which the Goods are returned to stock by the Company.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

6.2.1 the time at which the Company receives payment in full (in cleared funds) for the Goods, for any other goods that the Company has supplied to the Customer in respect of which payment has become due, and of any other sums which are owed by the Customer to the Company (on any account whatsoever); and

6.2.2 the time specified in clause 6.4, in the event that the Customer resells the Goods.

6.3 From the date of delivery or collection and until title to the Goods has passed to the Customer, the Customer shall:

6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;

6.3.2 maintain the Goods in As New Condition and keep them insured against all risks for their full price;

6.3.3 notify the Company immediately if the Customer or the Goods (as the case may be) become(s) subject to any of the events listed in clause 9.2; and

6.3.4 give the Company such information relating to the Goods as the Company may require from time to time.

6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells or uses the Goods before that time:

6.4.1 it does so as principal and not as the Company’s agent; and

6.4.2 title to the Goods shall pass from the Company to the Customer immediately before the time at which title to the Goods passes to the Customer’s own customer or use by the Customer occurs (as the case may be).

6.5 If before title to the Goods passes to the Customer, the Customer or the Goods (as the case may be) become(s) subject to any of the events listed in clause 9.2 then, without limiting any other right or remedy the Company may have:

6.5.1 the Customer’s right to resell the Goods or use them in the course of its business ceases immediately; and

6.5.2 the Customer must immediately notify the Company that it is subject to any of the events listed in clause 9.2 and:

(i) make available for collection by the Company all Goods in its possession title to which has not passed to a third party on resale, or which have not been irrevocably incorporated into another product; and

(ii) if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

6.6 Amounts received by the Company from the Customer shall be allocated by the Company in satisfaction of amounts which are owed by the Customer to the Company in such order, and in such proportions, as the Company shall decide, acting in its absolute discretion.

6.7 The Company is under no obligation to and does not routinely supply Goods on a sale or return or so-called ‘consignment’ basis. Any agreement by the Company to supply the Goods to the Customer on a sale or return basis (which agreement has not been revoked in accordance with these Terms), shall be made on and subject to the terms notified by the Company to the Customer in writing.  Goods supplied by the Company in the absence of written confirmation from the Company that such Goods are supplied on a sale or return basis are not sold on a sale or return basis.

6.8 In circumstances where Goods which are not subject to an agreement pursuant to clause 6.7 have been supplied to the Customer in accordance with the Contract, the Customer shall have no right to return those Goods (or any of them) to the Company (or to obtain a credit note or refund from the Company in respect of those Goods (or any of them)) unless:

6.8.1 the relevant Goods are not Perishable Goods;

6.8.2 the relevant Goods are in As New Condition immediately following the return of those Goods to the Company;

6.8.3 the relevant Goods are not Seasonal Goods; and

6.8.4 the Company provides its written consent for the Goods to be returned, which consent (if provided) shall be subject to such conditions as the Company sees fit.

6.9 In circumstances where the Company provides written consent for Goods to be returned by the Customer pursuant to clause 6.8, the Customer shall be responsible for the return of the Goods to the Company at the Collection Location. The costs of the return of the Goods (including the cost of any packaging) shall be for the Customer’s account. Risk in any Goods which are returned to the Company in accordance with this clause 6.9 shall pass to the Company once the Goods have been accepted by the Company and the Goods have been unloaded at the Company’s premises. The signature by the Company of any delivery note or other document upon receipt of any Goods shall not:

6.9.1 constitute (or be deemed to constitute) acceptance by the Company of the return of any Goods which do not comply with the requirements of clause 6.8; or

6.9.2 have the effect of transferring risk in those Goods which do not comply with the requirements of this clause 6.9 to the Company.

6.10 The Company shall charge a Restocking Fee in respect of any Goods which are returned to the Company pursuant to clauses 6.8 and 6.9.  

6.11 That the Company provides written consent for Goods to be returned by the Customer pursuant to clause 6.8 shall not have the effect of delaying the time at which the invoice which relates to those Goods is to be paid.

6.12 In circumstances where, after title to any Goods has passed to the Customer, the Company returns those Goods to stock pursuant to clause 4.1.7(iii)(c) or 4.2.7(iii)(b), title to those Goods shall pass back to the Company at close of business on the day on which the Company pays the refund referred to in clause 4.1.7(iv) or 4.2.7(iv), as the case may be.

7. Price and payment

7.1 Subject to clauses 7.2, 7.9, 7.11 and 7.14, the price of the Goods shall be the price set out in the written acceptance of the Order by the Company or, if no price is quoted, the price set out on the Website or the Spirits List (as applicable) as at the date of the Order.

7.2 The Company may, by giving notice to the Customer at any time up to three Business Days before delivery or collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

7.2.1 any factor beyond the Company’s control (including Force Majeure Event, foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs);

7.2.2 any request by the Customer to change the delivery date(s), Delivery Location, Collection Location. Collection Date and/or the quantities or types of Goods ordered; or

7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.

7.3 The price of the Goods is inclusive of the costs and charges of processing the Order and packaging the Goods, but is exclusive of the costs of delivery and insurance, which will be quoted and charged separately to the Customer (if applicable). Unless the price of Goods is stated to be an Ex-Duty Price, the price of the Goods is inclusive of United Kingdom excise duty. The price of the Goods is exclusive of any export duties, import duties, taxes, levies or imposts chargeable in respect of the Goods by the fiscal or customs authorities of any other country.  

7.4 The price of the Goods is exclusive of amounts chargeable in respect of value added tax (VAT) unless otherwise stated. The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

7.5 The Company may invoice the Customer for the Goods and for any other costs for the Customer’s account (including delivery and insurance costs) on or at any time after written acceptance of the Order.

7.6 Save for where otherwise permitted by the Company in writing, all invoices must be paid by the Customer in full on a pro forma basis (which means that full payment is to be made prior to the Goods being delivered or made available for collection) on or prior to the date for payment which is stated on the invoice.  Unless otherwise agreed in writing by the Company, the Customer shall:

7.6.1 pay all invoices in full and in cleared funds in pounds sterling without any set-off, counterclaim, deduction or withholding; and

7.6.2 make payment to the bank account nominated in writing by the Company.

7.7 The Company may upon the Customer’s request agree to offer a trade credit facility to the Customer in order to allow the Customer to purchase Goods on credit terms, subject to a maximum credit limit and such other conditions as the Company sees fit. In the event that the Company grants the Customer a trade credit facility, the Customer agrees to make all payments due to the Company by Direct Debit by the payment due date stated on the Company’s invoice. In such circumstances, the Customer agrees to set up and maintain a Direct Debit authorising the Company to deduct automatically all payments due to the Company from the Customer’s nominated bank account. The Customer must maintain the Direct Debit with the Company at all times and ensure that it always has sufficient funds in its nominated bank account to meet its payment obligations. In the event that the Company notifies the Customer that a Direct Debit payment has been unsuccessful, the Customer undertakes to promptly settle any invoices due to the Company by bank transfer (or such other means agreed between the Company and the Customer) in full and in cleared funds within two Business Days of receiving such notification from the Company. The Company reserves the right to revoke its agreement to provide the Customer with a trade credit facility at any time upon notice in the Company’s absolute discretion.

7.8 Time of payment by the Customer of all invoices under the Contract is of the essence.

7.9 If the Customer fails to make any payment due to the Company by the due date for payment (including in circumstances where the due date for that payment has been accelerated in accordance with clause 9.3(iii)) or cancels its Direct Debit with the Company in circumstances where it has opened a credit account with the Company:

7.9.1 the Company shall have the right to withdraw any discount (whether that discount was given explicitly for prompt payment or otherwise), in which event the Customer shall pay any difference between the discounted price of the Goods and the undiscounted price set out as at the date of the Order together with the overdue amount;

7.9.2 the Customer shall pay interest on the overdue amount at the rate of 10% per annum above HSBC Bank Plc’s base rate at the time that the interest is calculated. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement, and shall be compounded daily. Such interest shall not prejudice any rights which the Company has under the Late Payment of Commercial Debts (Interest) Act 1988. The Customer shall pay the interest together with the overdue amount;

7.9.3 the Company may suspend provision of the Goods under the Contract (or any of them) and any other contract between the Customer and the Company;

7.9.4 (without prejudice to the generality of clause 7.7) the Company shall have the right to withdraw any or all credit terms made available by the Company to the Customer;

7.9.5 the Company shall have the right to recover any costs incurred by the Company in procuring or expediting payment of the amount due (including the fees of debt collection agencies);

7.9.6 the Company shall have the right to terminate the Contract and any other contract between the Customer and the Company with immediate effect by giving written notice to the Customer; and

7.9.7 that Customer’s account shall no longer be In Good Standing and the Company shall have the right to suspend the Customer’s account with the Company until further notice.

7.10 The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

7.11 In circumstances where the Company and the Customer have agreed an Ex-Duty Price in respect of any Goods and the Goods are to be dispatched to a country within the European Union, that Ex-Duty Price shall only be available to the Customer in circumstances where the Customer has provided to the Company:

7.11.1 the endorsed copy 3 of the SAAD (or commercial equivalent) with the information in section B ‘Certification of Receipt’ completed accurately by the Customer;

7.11.2 evidence satisfactory to the Company of the payment of applicable excise duty (or any equivalent) in the destination country to the satisfaction of the fiscal authorities in that country (or evidence satisfactory to the Company that excise duty (or any equivalent) is not payable in the destination country); and

7.11.3 such other documentation or evidence as the Company shall request (acting reasonably), in respect of the relevant Goods, 

and where the Company is in fact able to make a successful drawback claim in respect of any excise duty which the Company has already paid in respect of those Goods.

7.12 In circumstances where the Customer fails to provide the documentation or evidence referred to in clause 7.11 to the Company’s satisfaction or where the Company is unable to make a successful drawback claim in respect of any excise duty which the Company has already paid in respect of those Goods, the Customer shall, in addition to the Ex-Duty Price, pay to the Company the difference between the Ex-Duty Price and Duty Inclusive Price of the relevant Goods, plus any VAT payable on that difference (together, the Difference). The Difference shall be deemed to have been included in the original invoice issued by the Company in respect of the relevant Goods and shall be payable to the Company on or before the date of payment stated on the invoice or immediately on demand if such date of payment stated on the invoice has passed. The provisions of these Terms which relate to the non-payment (or late payment) of invoices issued by the Company shall apply to the payment of any Difference, mutatis mutandis. If the Company issues an updated invoice which takes the Difference into account, the issuance of that updated difference shall not have the effect of delaying the point in time at which the Difference (or any other amount relating to the relevant Goods) is payable by the Customer.

7.13  In circumstances where the Goods are exported from the United Kingdom by or on behalf of the Customer, the Customer shall provide to the Company (or shall procure that its haulier or freight forwarder shall provide to the Company) such written evidence of export of Goods from the United Kingdom as the Company may require.

7.14 The Company will not be bound by clerical or arithmetical errors in documents produced by it (including the Spirits List) or on the Website.

7.15 All Orders are charged in pounds sterling. Any prices shown on any documentation supplied by Company, in the Spirits List or on the Website in currencies other than pounds sterling are for illustrative purposes only and do not constitute an offer to sell any Goods at a price which is not in pounds sterling. When placing Orders via the Website, the Website has the functionality to display approximate prices in other currencies. However, prices shown in currencies other than pounds sterling may differ from the actual amount charged by the Customer’s card provider or the Company’s payment processor (such as PayPal). The total price which will be charged will be displayed in pounds sterling before completing checkout. Equivalent amounts in currencies other than pounds sterling are subject to constant change as determined by exchange rates used by the relevant payment processors or card providers. Additional fees and charges outside of the Company’s control are for the Customer’s account. It is the Customer’s responsibility to ensure that any bank transfer payments for Orders are settled in full and in cleared funds in pounds sterling using the amount after currency conversion and any relevant financial institution charges.

7.16 The Company reserves the right to change the prices set out on the Website or in the Spirits List from time to time and without notice to the Customer.

7.17 Following acceptance of an Order by the Company, the Customer shall only be permitted to cancel the Order with the Company’s written permission. In the event the Company agrees to cancel the Customer’s Order, the Customer shall be liable to pay the Restocking Fee to the Company. For the avoidance of doubt, where the Customer has already made any payment to the Company in respect of an Order and the Company agrees to cancel that order, the Company shall refund that payment to the Customer net of the Restocking Fee.

7.18 In the event that the Customer is using a Master of Malt gift voucher against an Order, these terms and conditions here will apply. The Customer may also use a one-time voucher validly issued by the Company against an entire or a part of an Order. One-time voucher codes may be obtained through promotional offers, such as but not limited to our refer a friend scheme. The value of the one-time vouchers will be communicated to the Customer when it is issued. In order to redeem an one-time voucher, simply follow on-screen instructions and enter the code at checkout. The Company reserves the right to modify or cancel vouchers at any time (whilst acting reasonably and in good faith) and unless otherwise stated, vouchers can only be redeemed once and cannot be used in conjunction with any other offers, discounts, or promotions. In the case of the refer a friend scheme, if the referred friend cancels or returns their order or, if in the Company’s reasonable opinion, the scheme is being used unfairly or abused, the Company reserves the right to recharge the cost of any vouchers used pursuant to that scheme using the same payment details in the relevant Order.

8. Resale

8.1 Without prejudice to any other provisions in these Terms, the Customer:

8.1.1 shall follow the Company’s instructions regarding the storage of the Goods (if any) or best trade practice regarding the same;

8.1.2 shall follow the Company’s instructions regarding the handling of the Goods (if any) or best trade practice regarding the same;

8.1.3 shall follow the Company’s instructions regarding the serving of the Goods (if any) or best trade practice regarding the same;

8.1.4 shall not do anything calculated or likely to harm the Company’s reputation or the reputation of the Goods;

8.1.5 shall not make any change to the specification, composition, packaging and/or appearance of the Goods;

8.1.6 subject to clause 8.2 below, shall not sell, transfer, assign, dispose of or otherwise part with possession of the Goods otherwise than to retail customers of the Customer;

8.1.7 shall observe any use-by date, sell-by date or other time of latest use guidance provided by the Company (whether by printing that date or guidance on the packaging of the Goods or otherwise) in respect of Perishable Goods;

8.1.8 shall comply fully with all applicable laws in the relevant jurisdiction relating to the purchase, storage, use and resale of the Goods by the Customer; 

8.1.9 shall permit the Company’s representatives access at all reasonable times on at least one Business Day’s notice to the Customer’s premises for the purposes of assessing the Customer’s compliance with these Terms. The Customer shall have the right to require that the Company’s representatives are accompanied whilst on the Customer’s premises and the Company’s representatives shall comply with all reasonable health and safety instructions which are communicated to them by the Customer in writing; and

8.1.10 undertakes that it shall not resell, disseminate to the general public, or otherwise authorise third parties to use, resell, or disseminate the Goods in circumstances where the Goods are damaged (except for negligible and trivial damages to the packaging) or where there is reason to believe that the integrity of the Goods has been compromised, for example, but not limited to, where the seal of the Goods has been broken.

8.2 Whilst the Customer is permitted to resell the Goods to retail customers as outlined in clause 8.1 above, nothing in these Terms shall permit the Customer to use the Website or the Company in order to provide Third Party Logistics Services without the written authorisation by the Company (which authorisation shall be subject to such terms as the Company sees fit). Third Party Logistics Services are subject to separate terms of agreement and additional fees and charges, details of which can be provided upon request. In circumstances where the Company determines (acting in the Company’s sole discretion) that the Customer has sought to use the Website or the Company in order to provide Third Party Logistics Services without the written authorisation of the Company and/or without compliance with the applicable terms then, without prejudice to any other rights or remedies which the Company may have, the Company reserves the right to:

8.2.1 charge, as liquidated damages, all such fees attributable to the relevant Third Party Logistics Services as if an agreement for Third Party Logistics Services had been entered into between the Company and the Customer (on the basis of the Company’s standard charges for those services applicable at the relevant time) (the Liquidated Damages Payment). The Liquidated Damages Payment will be invoiced to the Customer, and the invoice will be payable by the Customer within 30 days from the date of the invoice. The Company and the Customer acknowledge and agree that the Liquidated Damages Payment represents a genuine pre-estimate of Company’s loss and does not impose a detriment on the Customer which is disproportionate to the legitimate interests of Company in the event that the Customer uses Third Party Logistics Services without the Company’s written authorisation, and that the Liquidated Damages Payment shall not excuse the Customer’s other obligations under these Terms;

8.2.2 suspend provision of the Goods under the Contract (or any of them) and any other contract between the Customer and the Company;

8.2.3 terminate the Contract and any other contract between the Customer and the Company with immediate effect by giving written notice to the Customer;

8.2.4 suspend the Customer’s account with the Company until further notice;

8.2.5 close the Customer’s account with the Company and not accept any further orders for the supply of the Goods from the Customer, entities in the Customer’s control, and third parties acting for and on behalf of the Customer.

8.3 The Customer shall indemnify the Company (and shall keep the Company indemnified) against all Liabilities suffered or incurred by the Company arising out of or in connection with any breach or breaches by the Customer of the terms of this clause 8.

9. Termination and suspension

9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Company reasonably believes that the Customer is about to become subject to any of them, the Company may (without any liability to the Customer and without limiting any other rights available to the Company) suspend provision of the Goods, suspend the Customer’s account with the Company, reduce (including to zero) the amount of credit made available by the Company to the Customer, and terminate the Contract with immediate effect by giving written notice to the Customer.

9.2 For the purposes of clause 9.1, the relevant events are:

9.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

9.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) in circumstances where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

9.2.3 (where the Customer is a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

9.2.4 (where the Customer is a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

9.2.5 (where the Customer is a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

9.2.6 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

9.2.7 (where the Customer is an individual) the Customer is the subject of a bankruptcy petition or order;

9.2.8 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 Business Days;

9.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 9.2.1 to 9.2.8 (inclusive);

9.2.10 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;

9.2.11 the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

9.2.12 (where the Customer is a company) the Customer is subject of a Change of Control; and

9.2.13 (where the Customer is an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

9.3 Without limiting its other rights or remedies, if the Company considers (acting reasonably) that the Customer:

9.3.1 is in breach of any term of the Contract;

9.3.2 is in repeated or persistent breach of the Contract in such a manner as to justify the opinion that the customer’s conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

9.3.3 is in breach of any credit terms set by the Company and communicated to the Customer;

9.3.4 is failing to account properly for excise duty (or any similar or replacement duty) chargeable in respect of the Goods in the United Kingdom;

9.3.5 is failing to pay any export duties, import duties, taxes, levies or imposts properly chargeable in respect of the Goods by the fiscal or customs authorities of any country;

9.3.6 is failing to comply with any requirements imposed on the Customer by the authorities of any country (including the United Kingdom) in respect of the labelling, sale or recycling of the Goods;

9.3.7 is using or used the Content without proper authorisation from the Company;

9.3.8 is failing to comply with any applicable regulations and legislation, including (but not limited to) the Bribery Act 2010, the Modern Slavery Act 2015 and any relevant competition laws;

9.3.9 is engaging in any conduct or activity which may bring into disrepute or otherwise damage the reputation or image of the Customer or the Company; or

9.3.10 is in breach of any applicable laws, legislation or regulations, or that the Company’s ongoing performance and fulfilment of the Contract will have the effect of putting the Company in breach of any applicable laws legislation or regulations,

the Company may (without any liability to the Customer):

(i) terminate the Contract with immediate effect by giving written notice to the Customer;

(ii) suspend provision of any Goods under the Contract or any other contract between the Customer and the Company;

(iii) accelerate the payment date for any amounts owed by the Customer to the Company (on any account whatsoever);

(iv) reduce (including to zero) the amount of credit made available by the Company to the Customer;

(v) in the case of the Customer using or used the Content without proper authorisation from the Company, charge any persons or entities a licence fee which exceeds the licence fee for authorised use of the Content as outlined in the Intellectual Property Licence Terms and Terms of Use; and/or

(vi) unilaterally revoke any agreement that all or any of the relevant Goods are sold on sale or return or ‘consignment’ terms made by the Company pursuant to clause 6.7;

9.4 Without prejudice to clause 9.3, the Customer shall indemnify the Company (and shall keep the Company indemnified) against all Liabilities suffered or incurred by the Company arising out of or in connection with any failure by the Customer to comply with any requirements imposed on the Customer by the authorities of any country (including the United Kingdom) in respect of the labelling, sale or recycling of the Goods.

9.5 On termination of the Contract for any reason, the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and any other amounts owed by the Customer to the Company (on any account whatsoever).

9.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

9.7 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

10. Limitation of liability

10.1 Nothing in these Terms shall limit or exclude the Company’s liability for:

10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

10.1.2 fraud or fraudulent misrepresentation;

10.1.3 breach of the terms implied by section 12 of the SOGA 1979; or

10.1.4 any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

10.2 Subject to clause 10.1:

10.2.1 the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of opportunity, loss of savings, loss of reputation, or any indirect or consequential loss arising under or in connection with the Contract; and

10.2.2 the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1,000,000. The Customer is responsible for making its own arrangements for the insurance of any Liabilities over and above this limit, or which are excluded by these Terms.

11. Force Majeure

11.1 Provided it has complied with its obligations in clause 11.2, if the Company is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event, the Company shall not be in breach of the Contract or otherwise liable for such failure or delay in the performance of its obligations under the Contract. The time for performance of such obligations shall be extended accordingly.

11.2 The Company shall:

11.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer of the Force Majeure Event, the date on which it started, its likely or potential duration (where possible), and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and

11.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

11.3 If the Force Majeure Event prevents, hinders or delays the Company’s performance of its obligations for a continuous period of more than four weeks, the Customer may terminate the Contract by giving written notice to the Company, provided that termination of the Contract pursuant to this clause 11.3 shall not affect any of the Customer’s obligations and liabilities that have already accrued as at termination (including any obligation to pay the Company for any Goods that the Company has supplied to the Customer (whether in full or part satisfaction of any Contract) and any other sums which are owed by the Customer to the Company (on any account whatsoever)). The Company shall refund to the Customer the amount already paid by the Customer (if any) towards the price of the Goods which the Company has not supplied to the Customer at the time of termination of the Contract as soon as practicable.

12. Intellectual property and confidentiality

12.1 As between the Company and the Customer, all Intellectual Property Rights embodied within:

12.1.1 the Goods;

12.1.2 the Content; and

12.1.3 the terms of the Contract,

shall belong to the Company.

12.2 Unless otherwise agreed in writing with an authorised representative of the Company, the Customer has no right to use the Content of the Website. Any use of the Content will incur additional fees and charges and is subject to the Company’s written authorisation, the Intellectual Property Licence Terms (which can be found here), Terms of Use (which can be found here), and any other terms which the Company may impose as it sees fit. The unlicensed use or reproduction by any means of any Content constitutes an infringement of copyright and is strictly forbidden.

12.3 In circumstances where the Customer becomes aware of any actual, suspected or threatened infringement by any third party of any of the Intellectual Property Rights referred to in clause 12.1, or becomes aware of any claim from any third party that any of those Intellectual Property Rights infringe the rights of that third party, the Customer shall immediately notify the Company of the fact and circumstances of that infringement. The Company shall have exclusive control over, and conduct of, all claims and proceedings relating to the Intellectual Property Rights referred to in clause 12.1 and the Customer shall (at the Company’s cost) provide such information and assistance as the Company may reasonably require. The Customer shall not make any admissions or seek to negotiate any terms of settlement in respect of such claims or proceedings. As between the Company and the Customer, the Company shall be entitled to retain all sums recovered in any claims and proceedings relating to the Intellectual Property Rights referred to in clause 12.1 for its own account.

12.4 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 12.5. No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract. For the avoidance of doubt, this clause 12.4 shall survive termination of the Contract.

12.5 Each party may disclose the other party’s confidential information:

12.5.1 to those of its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

12.5.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.6 For the purposes of training, security and fraud prevention, the Company may record telephone conversations between representatives of the Company and the Customer and store correspondence between representatives of the Company and the Customer indefinitely.

12.7 The Customer agrees that the Company may obtain and retain credit references relating to the Customer from third parties (including credit reference agencies) and that the Company may (without prejudice to its other rights and remedies in circumstances of non-payment) notify credit reference agencies in circumstances of non-payment by the Customer of amounts owed to the Company.

13. General

13.1 Compliance

The Customer warrants and represents that it shall comply with all applicable regulations and legislation at all times, including (but not limited to) the Bribery Act 2010 and the Modern Slavery Act 2015.

13.2 Assignment and other dealings

13.2.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

13.2.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.

13.3 Notices

13.3.1 Any notice or other communication given to a party under or in connection with the Contract shall be sent by e-mail. In the case of any notice or other communication which is sent to the Company, a copy of that email shall be sent to [email protected].

13.3.2 A notice or other communication shall be deemed to have been received one Business Day after transmission.

13.3.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.4 Severance

13.4.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

13.4.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.5 Waiver

A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.6 Third party rights

A person who is not a party to the Contract shall not have any rights to enforce its terms.

13.7 Variation

13.7.1 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms of business, shall be effective unless it is in writing and signed by a director of or in-house counsel to the Company.

13.7.2 The Company shall have the right to amend these Terms from time to time. Save as set out below, changes to these Terms shall be effective from the moment in time at which they are published on the Website. No change to these Terms shall affect the terms of any Contract which has come into existence prior to the date of publication of that change.

13.8 Governing law and jurisdiction

13.8.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

13.8.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

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