Heineken UK Limited Technical Service Equipment Terms and Conditions

Generic Technical Services Charging Summary

Subject to the full terms and conditions set out below, you will NOT be charged for Generic Technical Service Equipment and Services provided to your Outlet by Heineken UK Limited (“HEINEKEN”), or any subcontractor of ours, in respect of:

• any of HEINEKEN’s brands; OR

• keg lines relating to brand owners who have chosen to settle centrally with HEINEKEN (set out in TABLE A below - please note this list is subject to change and will be updated from time to time).

TABLE A – Centrally Settled Brand Owners (lines will not be chargeable to you)

You will be charged the monthly PAYG Charges (as set out below) for lines in your Outlet that dispense brands owned by or licensed to a brand owner that does not appear in Table A.

If you HAVE any agreement with HEINEKEN relating to the supply of draught products (either directly from us or indirectly via a distributor), these terms and conditions are hereby deemed to form part of your contractual relationship with us. In the event of any conflict between conditions 12 – 23 (inclusive) of these terms and conditions and the terms of your other existing agreement(s) with us, the terms of your existing agreement(s) shall take precedence and prevail.

If you DO NOT HAVE an agreement with HEINEKEN relating to the supply of draught products, the terms and conditions set out below shall apply to the installation and maintenance of technical service equipment by us, or our nominated subcontractor, in your Outlet.

In either case, you agree that these terms and conditions constitute the terms of a technical service agreement between you and HEINEKEN (the “Agreement”).

If you do not confirm acceptance of this Agreement, you shall still be deemed to agree to these terms and conditions by continuing to make use of the Technical Service Equipment and/or benefit from the Services.

1.    Interpretation

 
1.1.  In this Agreement:

“Cask Dispense Equipment” means the technical services equipment required for the dispense of cask ale in your Outlet, including the cask dispense check valve, gas pump (where relevant), cask python and cask cooler (where an existing keg cooler and keg python line isn’t being used for cask ale dispense), under bar beer engine and cask tap (handpull) including siphon;

“Centrally Settled Brand Owners” means the brand owners that have agreed to make payment directly to us for the use of Generic Technical Services Equipment and Services in respect of their owned or licensed brands, as set out in Table A above (as updated from time to time);

“Chargeable Line” means each draught keg dispense line in your Outlet that dispenses products that are not owned or licensed by (i) us or (ii) a Centrally Settled Brand Owner;

“Charges” means the Fair Ale Charges, the PAYG Charges and any sums payable under Condition 9.3;

"Data Protection Laws" means EU Data Protection Laws, UK Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. In the event of conflict between EU Data Protection Laws and UK Data Protection Laws, UK Data Protection Laws shall prevail;

"EU Data Protection Laws" means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and laws implementing or supplementing the GDPR;

“Fair Ale Charges” means sums payable for the supply or maintenance (or procuring the supply or maintenance) of Cask Dispense Equipment;

“Generic Technical Service Equipment” means the Technical Service Equipment required to dispense draught keg products in an Outlet, comprising the cooled lines (python), primary gas valves, T-Bar units and points and the remote cooler, but not including Branded Technical Service Equipment, founts, or any brand owner’s line-sets;

“Heineken Group Company” means any direct or indirect holding or subsidiary undertakings of Heineken UK Limited or any direct or indirect subsidiary of such holding company, and other undertakings in which Heineken UK Limited has a direct or indirect interest;

“Intellectual Property Rights” means all copyright, patent, trade mark, trade secret, design rights, domain names and other proprietary and intellectual property rights whether registered or unregistered in the Technical Service Equipment and know how which we may provide in relation to the Technical Service Equipment or Services;

“Lead Brewer” means the brand owner with the highest number of keg dispense lines at an Outlet using the Generic Technical Service Equipment to pour its brands;

“Outlet” means the premises in which the Technical Service Equipment is installed or intended to be installed;

“PAYG Charges” means the Pay As You Go sums payable for the provision of Generic Technical Service Equipment and the Services, as outlined in Condition 7;

“Products" means our owned and/or licensed products;

“SDE” means Serviced Dispense Equipment Limited (04959037) having its registered address at Maltings Building, Leeds Road, Tadcaster, North Yorkshire, LS24 9HB;

“Services" means the provision of Generic Technical Service Equipment and the maintenance services outlined in Condition 6 by us or any subcontractor of ours; 

“SmartDispense Equipment” means our proprietary draught dispense equipment which does not form part of this Agreement and is governed by its own set of terms and conditions;

“Technical Service Equipment” means all raising, dispense, and other equipment supplied by us (or any subcontractor of ours), including the Branded Technical Service Equipment and Generic Technical Service Equipment, but excluding any SmartDispense Equipment and Cask Dispense Equipment; and

"UK Data Protection Laws" means the GDPR as transposed into UK national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 ("UK GDPR"), together with the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and other data protection or privacy legislation in force from time to time in the UK.

1.2.   In this Agreement:

1.2.1.   “we”, “us” or “our” refers to Heineken UK Limited or any Heineken Group Company;

1.2.2.   “you” refers to the recipient of the Technical Service Equipment and/or Services supplied by us (or any subcontractor of ours);

1.2.3.   the singular includes the plural and vice versa;

1.2.4.   any phrase introduced by the terms “including”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms;

1.2.5.   unless otherwise specified, a reference to “writing” does not include email or fax;

1.2.6.   any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);

1.2.7.   references to statutes, any statutory instrument, regulation or order will be construed as a reference to such statute, statutory instrument, regulation or order as amended, supplemented or re-enacted from time to time; and

1.2.8.   words and expressions which are defined in the Companies Act 2006 have the same meanings as are given to them in that Act.

1.3.   This Agreement does not apply to the installation or maintenance of any SmartDispense equipment, in respect of which you will need to enter into a separate agreement with us.

2.    Basis of Generic Technical Service Equipment Provision

2.1.   If we are the Lead Brewer in your Outlet, we will supply the Generic Technical Service Equipment and the Services in your Outlet in accordance with, and subject to, the terms of this Agreement. Notwithstanding the foregoing, you can choose whether you wish for us to provide Generic Technical Service Equipment and Services in your Outlet. 

2.2.   Without prejudice to the terms of this Agreement, in the event that we are the Lead Brewer in your Outlet and you no longer wish for us to provide Generic Technical Service Equipment and Services in your Outlet, you must notify us in writing. If we receive such notification from you, we will discuss your options with you, including, the option for you to purchase the Generic Technical Service Equipment at a price we may agree with you.

2.3.   In the event that we (or our nominated subcontractor) agree to sell any Generic Technical Service Equipment to you, we shall arrange with you to attend your premises in order to remove any references to the ownership of the Generic Technical Service Equipment and/or any serial numbers from the Generic Technical Service Equipment.  For the avoidance of doubt, under no circumstance will we sell any Branded Technical Service Equipment to you. 

3.    Title, Risk and Insurance

3.1.   You must not sell or otherwise dispose of the Technical Service Equipment in any way, or offer the Technical Service Equipment for sale, or allow the creation of any mortgage, charge, lien or other security interest in respect of the Technical Service Equipment.

3.2.   Subject to Condition 2.3, all Technical Service Equipment will remain our property (or the property of other companies with whom we have contracted, including SDE), but the Technical Service Equipment will be at your risk while on your premises or under your custody or control. You must insure the Technical Service Equipment whilst it is at your risk, such insurance to be sufficient to cover all costs required to effect replacement or repair (including labour costs), including damage sustained to the Technical Service Equipment as a result of malicious damage, explosion, fire or flood.

4.    Cask Dispense Equipment

4.1.   The supply and maintenance of the Cask Dispense Equipment is the responsibility of the individual cask ale brand owner or Cask Dispense Equipment owner.  We will only supply and maintain Cask Dispense Equipment in your Outlet if we (i) are the Lead Brewer and supply draught products to you directly; or (ii) have entered into a SmartDispense agreement with you. For the avoidance of doubt, you will be responsible for cleaning the cask ale lines.    

4.2.   Where we supply or maintain (or procure the supply or maintenance of) Cask Dispense Equipment pursuant to condition 4.1 (i) or (ii) above, the Fair Ale Charges will apply. 

4.3.   In the event that:

i.  we cease to be the Lead Brewer in your Outlet; or 
ii.  you stop purchasing draught Products from us directly,

you agree to purchase the Cask Dispense Equipment from us at a cost of £250.00 per handpull line, or to grant access for us (or our nominated subcontractor) to the Outlet in order to remove the Cask Dispense Equipment.  

4.4.   The Fair Ale Charges will continue to be payable by you until the earlier of:

i.  us receiving payment in full for the Cask Dispense Equipment; or
ii.  the recovery of the Cask Dispense Equipment from your Outlet; or
iii.  the closure of your trading account with us.

5.    Installation of Technical Service Equipment

5.1.    Generic Technical Service Equipment

Subject to your compliance with this Agreement (including making full payment of the Charges due in accordance with Condition 7) and any other terms relating to Technical Service Equipment in any other agreements we may have with you, where we are the Lead Brewer in your Outlet we will install and maintain the Generic Technical Service Equipment as we may agree with you from time to time.  We will not be responsible for the provision and maintenance of any cellar cooling equipment or third party owned or supplied gas distribution equipment. Where third party supplied gas distribution equipment is installed in your Outlet, you will be responsible for ensuring that it is operating to the specification provided to you by the relevant third party. For the avoidance of doubt, SDE shall not be considered to be a third party for the purposes of this Condition 5.1. 

5.2.   Branded Technical Service Equipment 

5.2.1.   Where we, our agents or subcontractors supply Branded Technical Service Equipment, it is for the exclusive use with the Products and must be used in accordance with our instructions (or those of our subcontractor) and remain strictly as installed by us or our subcontractor. 

5.2.2.   We may also elect to supply or procure the supply of branded cooling equipment, to deliver extra cold temperatures, for exclusive use by you with the Products. Such equipment will form part of the Branded Technical Service Equipment. 

5.2.3.   In the event that you use the Branded Technical Service Equipment to dispense products other than the Products, you will be acting otherwise than in accordance with this Agreement and we reserve the right to take the steps set out in Condition 9.

5.3.   All Technical Service Equipment

5.3.1.   Once installed, the Technical Service Equipment must not be moved or tampered with. 

5.3.2.   Without prejudice to any other rights and remedies available to us under this Agreement, in the event that any Technical Services Equipment in your Outlet is lost, unrecoverable or damaged beyond repair, or we cease to be the Lead Brewer at the Outlet and are unable to recover the value of the Technical Services Equipment from the new Lead Brewer at the Outlet, we have a right to reclaim (and you agree to pay) the cost of the relevant item of Technical Services Equipment in accordance with the rate card value.  The rate card will be made available to you on request (please email tsasset@heineken.co.uk to request a copy).  

5.3.3.   Both parties acknowledge and agree that the rate card represents a genuine pre-estimate of the loss we will suffer in connection with the installation of the relevant Technical Services Equipment as a result of it being lost, unrecoverable or damaged beyond repair, or us being unable to recover the value of the Technical Services Equipment from the new Lead Brewer.

5.3.4.   If you remove any of the Products from the Branded Technical Service Equipment installed, we reserve the right to demand repayment of the value in respect of that Branded Technical Service Equipment at the relevant time in full. 

5.3.5.   For the avoidance of doubt, we will not be responsible for any cosmetic or non-essential changes to the Technical Service Equipment and we reserve the right to charge you for all sums due in respect of such cosmetic and non-essential changes including:

5.3.5.1.   changes to dispense type e.g. fount to T-bar or vice versa, or T-bar to T-bar;

5.3.5.2.   maintenance or replacement connected to failure to comply with Condition 8 (Your Responsibilities) of this Agreement;

5.3.5.3.   upgrades to Technical Service Equipment;

5.3.5.4.   relocation of Technical Service Equipment; and

5.3.5.5.   refurbishment of bars or cellars. 

5.3.6.   Any additional technical service provisions, for example the installation of additional service stations, T-bars, non-standard or upgraded dispense equipment, cosmetic bar refurbishments, non-standard temperature or speed of dispense initiatives will need to be agreed in writing with us, and all of the costs borne by you, unless we agree otherwise in writing.  

6.    Maintenance of Technical Service Equipment

6.1.   Provided that you, your tenants, managers and agents comply with this Agreement (including, but not limited to, Condition 7 (Charges and Payment) and Condition 8 (Your Responsibilities)), we will replace the Branded Technical Service Equipment and/or where applicable (and only where we are the Lead Brewer) the Generic Technical Service Equipment if such equipment is:

6.1.1.   at the end of its useful economic life; or

6.1.2.   causing material dispense issues as a result of normal wear and tear.

6.2.   Any replacement pursuant to Condition 6.1 may consist of a replacement in whole or in part with new or refurbished components, as shall be determined by us at our sole discretion.

6.3.   In the event that the Technical Service Equipment requires maintenance, repair or replacement:

6.3.1.   otherwise than in the ordinary course; or

6.3.2.   other than as a result of normal wear and tear,

we retain the right and that of our subcontractors to charge you for such maintenance, repair and/or replacement costs.

7.    Charges and Payment

7.1.   You agree to pay us the Charges (as may be amended from time to time in accordance with Condition 7.4) in accordance with this Condition 7. The Charges are exclusive of VAT unless otherwise stated. VAT will be payable by you at the prevailing rate, subject to receipt of a valid VAT invoice from us.

7.2.   Subject to Conditions 7.4 and 7.5:

7.2.1.   the Fair Ale Charges are calculated at a rate of £9.28 per handpull line per calendar month; and

7.2.2.   the PAYG Charges are calculated at a rate of £14.45 per Chargeable Line per calendar month.

7.3.   You will make payment of the Charges to us in cleared funds within such period or on such date as we will specify to you from time to time (“due date”). If we do not give you a period or specific date, payment will be due within 14 days of the date of our invoice.

7.4.   We may amend the Charges from time to time, but no more frequently than once per calendar year. We will notify you in advance of the date on which any amended Charges become effective.

7.5.   If payment of any Charges is not made by the due date, we may claim interest at the rate prescribed from time to time under the Late Payment of Commercial Debts (Interest) Act 1998 (as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002) from the payment due date until payment is received by us in cleared funds.

7.6.   The time for payment shall be of the essence. Failure to pay any amount due to us or any other Heineken Group Company by the payment due date, will entitle us (at our option) to:

7.6.1.   suspend performance of the Services in respect of any dispense lines in your Outlet if we have not received the Charges due in respect of any Chargeable Lines in that Outlet in full on the due date;

7.6.2.   disconnect any Chargeable Lines in your Outlet from our Generic Technical Service Equipment if we have not received the Charges due in respect of those Chargeable Lines in full on the due date;

7.6.3.   set-off, withhold or deduct any outstanding Charges from any sum which we, or any other Heineken Group Company, owe you;

7.6.4.   if you purchase products directly from us, suspend delivery of any undelivered orders and refuse to accept any order that you place; and/or

7.6.5.   remove the Technical Service Equipment or charge you for its value in accordance with Condition 9.

7.7.   We are entitled to withhold payment to you of any agreed discounts, bonuses, rebates, overriders and/or marketing budgets and to recover any such sums already paid to you if you are in breach of this Agreement or any other agreements we may have with you.

8.    Your Responsibilities

8.1.   You must pay the Charges to us on or before the payment due date.

8.2.   You must allow us (or our subcontractor or representative) safe working access to your Outlet to carry out any work for the change, replacement, maintenance, removal or collection of the Technical Service Equipment and for auditing purposes, at all reasonable times, and shall ensure that we hold up-to-date contact details for you so that we can contact you in order to arrange such access.

8.3.   You must ensure that the Technical Service Equipment supplied is kept in good condition and is returned to, or able to be collected by, us (or our subcontractor) on demand at any time.

8.4.   You must procure that all tenants, staff, managers and/or agents comply with this Agreement.

8.5.   Where you are notified that a persistent dispense issue is connected to a failure to comply with this Agreement, you must ensure that action is taken to remedy the situation including providing appropriate training and support.

8.6.   You must ensure that the Technical Service Equipment is properly maintained, including by:

8.6.1.   complying with all health & safety requirements;

8.6.2.   maintaining cellars in the range of 11 to 13 degrees centigrade and allowing products to reach this temperature before dispense;

8.6.3.   not allowing any adjustments, removals or other amendments to the dispense systems;

8.6.4.   carrying out building works (if required), including provision of access for pythons and other pipe work;

8.6.5.   providing suitable electrical supplies;

8.6.6.   carrying out any adjustments to bar structures including bar tops (e.g. drilling, cutting or filling of gaps left by equipment removed);

8.6.7.   providing cellar cooling systems, flow monitoring equipment, bottle coolers, bulk gas, gas separation / blending systems and automatic line cleaning systems;

8.6.8.   conducting all line cleaning and ensuring all lines are cleaned every 7 days in accordance with industry line cleaning process and standards (any costs for additional cleaning required e.g. blitz cleans, premature python replacement will be your responsibility);

8.6.9.   bearing any costs associated with temporary bars;

8.6.10.   ensuring that the floor of the cellar is watertight apart from any necessary drainage in the ordinary course;

8.6.11.   ensuring that any costs or obligations on other brewers generated due to bespoke project activity are agreed between all parties before work commences; and

8.6.12.   taking all reasonable care of equipment whilst it is in your charge, and fully insuring such equipment in accordance with Condition 3.2.

9.    Removal of Technical Service Equipment

9.1.   We reserve the right at all times to remove the Technical Service Equipment from your Outlet(s) (i) if we reasonably believe you are acting otherwise than in accordance with the terms of this Agreement; (ii) if you fail to make payment of the Charges on the due date in accordance with Condition 7; (iii) if we become entitled to terminate the provision of the Technical Service Equipment and Services in accordance with Condition 10; or (iv) on termination or expiry of any agreements we have with you for any reason.

9.2.   Where Condition 9.1 applies, we will provide notice to you and you must contact us within 7 days of such notice to agree an appointment for the removal of the Technical Service Equipment from your Outlet(s). If you do not contact us or you do not agree an appointment within 7 days of receipt of our notice, you agree to allow us (and/or our nominated subcontractor) immediate access to your Outlet(s) and the Technical Service Equipment in order to recover the Technical Service Equipment.

9.3.   If you do not comply with Condition 9.2, we may proceed with formal action against you to effect recovery of the Technical Service Equipment and/or to seek to recover from you the value of the Technical Service Equipment, which will be calculated in accordance with the rate card. In either event, we will seek to recover all costs and expenses incurred by us in connection with such recovery or enforcement action. In the event that we seek the recovery of the value of the Technical Service Equipment in the alternative to recovery of the Technical Service Equipment, the replacement value and our costs and expenses so incurred shall be payable by you either on receipt of an invoice from us or pursuant to a court order. If an invoice is issued, the invoice amount will form part of the Charges and constitute a debt sum which shall be recoverable from you as a debt in the event of your failure to pay said invoice on receipt.

9.4.   You must notify us promptly, and in any event within no less than 28 days prior to the Outlet’s closure, if one of your Outlets is due to close permanently, and you agree to allow us (and/or our nominated subcontractor) immediate access to your Outlet and the Technical Service Equipment in order to recover the Technical Service Equipment. In the event that we are unable to recover the Technical Services Equipment within 28 days of the Outlet’s closure or on becoming aware of its closure if you fail to provide us with the required notice, the Technical Services Equipment shall be deemed unrecoverable, and we shall have the right to reclaim (and you agree to pay) the cost of the relevant Technical Services Equipment in accordance with the rate card.

9.5.   If one of your Outlets is due to be closed for a period of time of 4 weeks or more for any reason, you must notify us so that we may protect the Technical Services Equipment whilst it is not in use, to include switching off the Technical Services Equipment and/or any Cask Dispense Equipment that we or SDE owns, de-coupling the gas, draining the system and introducing a line protection solution. You agree to grant us access to check the Technical Services Equipment and/or Cask Dispense Equipment that we own and to reperform any of the activities outlined in this Condition 9.5 in order to protect the Technical Services Equipment and Cask Dispense Equipment at three-monthly intervals during any closure period. Alternatively, in the event that the closure period continues beyond three months and there is no clear re-opening date, we have the right to recover the Technical Services Equipment and/or any Cask Dispense Equipment that we or SDE owns in accordance with the terms of this Agreement. Your failure to notify us in accordance with this Condition 9.5 may result in you being liable for the cost of any Technical Services Equipment and/or Cask Dispense Equipment.

9.6.   If at any time the Technical Services Equipment in any of your Outlets is no longer being used (e.g. you have a cask handpull line but are not dispensing any cask products), you must notify us without delay and grant us access to recover the unused Technical Services Equipment from the Outlet for potential reuse.

9.7.   Where the Technical Service Equipment has been removed pursuant to this Condition 9 or pursuant to a court order, we will not be responsible for procuring or installing replacement dispense equipment at the Outlet.

9.8.   We will inspect any Technical Service Equipment that is returned, removed or collected from an Outlet pursuant to this Agreement or pursuant to a court order, to ensure that it is in a condition commensurate with the age of the Technical Service Equipment (taking into account fair wear and tear). In the event that the Technical Service Equipment is returned, removed or collected from the Outlet in a condition that is not commensurate with the age of the Technical Service Equipment (taking into account fair wear and tear), you agree to pay to us, on receipt of our invoice, any costs of repair or rectification of the Technical Service Equipment.

9.9.   You will continue to be liable for the applicable Charges until such time as the relevant removal(s) is/are complete or the value of the Technical Service Equipment has been paid.

10.    Termination

10.1.   We shall be entitled to terminate the provision of the Technical Service Equipment and Services immediately (without liability to you and without prejudice to our other rights and remedies) if:

10.1.1.   you become unable to pay your debts as they fall due (including under any other agreement you have with Heineken); or you commence negotiations with your creditors with a view to rescheduling any of your debts; or you cease trading or announce your decision to do so; or

10.1.2.   the value of your assets is less than your liabilities; or

10.1.3.   any steps are taken with a view to:

10.1.3.1.   appointing an administrator, receiver, administrative receiver, liquidator, trustee or other similar officer in respect of you or your assets;

10.1.3.2.   enforcing payment of any of your debts or of any security you have granted; or

10.1.3.3.   obtaining a moratorium in respect of your debts; or

10.1.4.   we believe that any of the events referred to in Conditions 10.1.1, 10.1.2 and/or 10.1.3 are reasonably likely to occur; or

10.1.5.   you fail to comply in any material respect with the obligations set out in this Agreement (including Condition 8); or

10.1.6.   you fail to pay the Charges on or before the due date for payment.

11.    Transfer of Technical Service Equipment

You must provide us with reasonable notice in writing to tsasset@heineken.co.uk of any proposed transfer of your Outlet to another party, including details of the new owner’s full business name (including any trading names), key contact name, a key contact telephone number.

12.    Liability

12.1.   We do not exclude any liability to you in respect of (i) death or personal injury caused by our negligence, (ii) fraud or fraudulent misrepresentation, or (iii) anything else that cannot be excluded by the operation of law.

12.2.   Subject to Condition 12.1, under no circumstances whatsoever will we be liable to you (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for:

12.2.1.   any loss of profit;

12.2.2.   loss of business or business opportunity;

12.2.3.   loss of revenue;

12.2.4.   loss of anticipated savings;

12.2.5.   depletion of goodwill; or

12.2.6.   any indirect or consequential losses of any nature, howsoever arising, under or in connection with this Agreement or any contract we may have with you.

12.3.   Subject to Conditions 12.1, 12.2 and 12.4, our total aggregate liability to you in respect of all other losses arising under or in connection with this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise will be limited to the Charges paid by you directly to us in the three months preceding the date that event, act or omission giving rise to the liability occurred.

12.4.   We will not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of our obligations, if the delay or failure was due to any cause beyond our reasonable control or due to your fault. This includes strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or those of a third party), adverse weather conditions, default or delays of suppliers or subcontractors, breakdown of plant or equipment, and material shortages.

12.5.   There are no conditions, warranties, representations or terms, express or implied, that are binding on us except as specifically stated in this Agreement. Any condition, warranty, representation or term concerning the Technical Service Equipment or Services which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is hereby expressly excluded.

12.6.   You will indemnify us against any third party claims, losses, damages, expenses and costs we incur as a result of your negligence or any breach by you of this Agreement.

13.    Data Protection and Anti-Money Laundering

13.1.   We comply with Data Protection Laws and will use any personal data you provide to us in accordance with Data Protection Laws. Please note that any information, including any personal data, you provide to us during the course of the trading relationship with us may be used by us and other Heineken Group Companies and our subcontractors, representatives and/or agents for the purposes of our fulfilling our obligations to you under this Agreement.

13.2.   For more information on how we use your personal data and your rights with respect to the personal data we hold on you, please review our Privacy Policy (available at https://www.heineken.co.uk/legal-hub/privacy-policy or email dataprotection@heineken.co.uk to request a copy).

13.3.   We are required to comply with money laundering legislation and regulations designed to combat the laundering of the proceeds of crime. Accordingly, we:

13.3.1.   reserve the right to withhold or delay performance of the Services or provision of any Technical Service Equipment until we have been provided with satisfactory evidence of your identity and the identity of the person making payment to us on your behalf (if applicable);

13.3.2.   may be required to notify the appropriate authorities of issues relating to your affairs; and

13.3.3.   reserve the right to refuse to accept cash payments.

13.4.   We shall have no liability to you for any losses that may be incurred as a result of any of the above.

14.    Set-off

14.1.   If you owe us, or any other Heineken Group Company, any payment or other liability, then we may set-off, withhold or deduct that amount from any sum which we, or such other Heineken Group Company, owe you.

14.2.   If we, or any other Heineken Group Company, owe you any payment or other liability, you shall not be permitted to set-off, counterclaim, withhold or deduct any sum which we owe you from any amount that you owe us, or any other Heineken Group Company.

15.    Payment Terms

 
15.1.   We reserve the right at any time, at our sole discretion, to amend or withdraw either or both of the (i) payment terms and (ii) method of payment.

15.2.   In the event of your breach of this Agreement, or any circumstances which give us reasonable concerns about your solvency, we reserve the right to amend or withdraw either or both of the (i) payment terms or (ii) method of payment.

15.3.   In the event of any direct debit being dishonoured, a charge of £30.00 excluding VAT (or such other reasonable sum as we may from time to time advise you) will be made on your account to cover bank and administrative costs.

15.4.   We may make your invoices and statements available to you electronically. We reserve the right to make a reasonable administration charge for any hard copy invoice/statements requested by you.

15.5.   In the event that we make any payment or overpayment to you in error, such payment to you will be treated as a debt due to us and you must repay the amount by which you have been overpaid to us in full within 28 days of being made or becoming aware of our payment error.

16.    Waiver

 
No failure or delay by either of us in exercising our rights or remedies under this Agreement or any contract we may have with you will prevent or restrict the exercise of such rights or remedies at any time. No waiver (whether express or implied) by either of us of any breach of any of this Agreement or the terms of any contract we may have with you by the other will be construed as a waiver of any subsequent breach of the same or any other provision.

17.    Third Party Rights

 
Except as expressly provided in this Agreement, no third party will have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement or any contract we may have with you.

18.    Compliance with Laws

 
In performing your obligations under this Agreement, you must, and will procure that each of your or your holding company’s direct or indirect subsidiaries, comply with all applicable laws, statutes, regulations, codes and HMRC Excise Notices from time to time in force, including the Bribery Act 2010, Data Protection Laws, the Modern Slavery Act 2015 and the Competition Act 1998.

19.    Notice

19.1.   A notice given to a party under or in connection with this Agreement must be in writing and sent to the party in accordance with the following:

19.1.1.   to us at our registered office address (Heineken UK Limited, 3-4 Broadway Park, South Gyle Broadway, Edinburgh EH12 9JZ) and marked for the attention of the Head of Legal; and

19.1.2.   to you at your trading address,

or as otherwise notified in writing to the other party.

19.2.   Any notice will be deemed to have been received:

19.2.1.   if delivered by hand, on signature of a delivery receipt; or

19.2.2.   if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second business day after posting.

20.    Law and Jurisdiction

 
Any dispute or claim arising out of or in connection with our trading relationship with you or the formation of any contract we may have with you (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the English Courts will have exclusive jurisdiction over any disputes arising, unless your business is in Scotland, in which case such jurisdiction will be non-exclusive.

21.    General

21.1.   We reserve the right to transfer to any person the right to receive payment of any money payable to us, and/or any of our other rights.

21.2.   The Intellectual Property Rights will (as between you and us) remain vested in us. You will not acquire any title in the intellectual property rights. You may not copy or imitate the Intellectual Property Rights, products, containers or equipment or do or omit to do, or permit any third party to do or omit to do, anything which may damage such Intellectual Property Rights. Any goodwill arising from the use of the Intellectual Property Rights shall accrue to us.

21.3.   You are not entitled to assign, re-sell, charge, encumber or otherwise transfer any of your rights or obligations under this Agreement, in whole or in part, at any time without our prior consent and any attempt to do so will enable us to terminate this Agreement without prejudice to our other rights and remedies. We shall be entitled to subcontract any or all of our obligations under this Agreement.

21.4.   Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

22.    Amendments

 
We reserve the right to alter this Agreement generally or for any particular class of products or customer. We will use our reasonable endeavours to give at least one week’s notice of alteration.

23.    Severance

 
If any provision or part-provision of this Agreement becomes invalid, illegal or unenforceable (in whole or in part) 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 condition will not affect the validity and enforceability of the remaining provisions (and/or the remainder of such provision).

 
Last Updated:13th June 2024