Terms and Conditions of Sale
1. Basis of Sale
1.1. These are the terms of sale which apply to Heineken UK Limited’s and/or any Heineken Group Company’s (as the case may be) contract with you, and any references to “we”, “our” or “us” in these terms of sale shall refer to Heineken UK Limited or such other Heineken Group Company. In these terms of sale, “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.
1.2. Any terms and conditions proposed by you or which you may purport to apply under any purchase order or confirmation of order, or which are implied by trade, custom, practice or course of dealing, are expressly excluded. The signing or acceptance of any of your documentation by any of our employees or agents shall not modify these terms of sale or form part of any contract between you and us.
1.3. All descriptions and illustrations contained in our advertisements and other sales literature are intended merely to present a general impression of the products described in them and nothing contained in them shall form part of these terms of sale nor have any contractual force. The sale of products to you under these terms of sale or any contract we may have with you shall not be a sale by sample.
1.4. These terms of sale should be read in conjunction with our trading policy documents (including our Ullage Policy), which we issue from time to time and which form part of these terms of sale.
1.5. Subject to your compliance with conditions 3.1 and 3.5, the products supplied by us to you shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979). If the products are not of such satisfactory quality, we shall at our sole option either supply replacement products or refund the price paid by you for the relevant products, such refund to be subject to the terms of our Ullage Policy in respect of draught products and the process outlined in condition 2.9, 2.10 and 2.11 of these terms of sale. Other than in respect of any third party claims against you relating directly to the supply by us to you of products that are not of satisfactory quality in accordance with this condition 1.5, such replacement or refund shall be your sole remedy in respect of any claim by you for our breach of this condition.
1.6. The conditions, warranties and other terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from these terms of sale and any contract we may have with you.
1.7. These terms of sale cover the supply of products by us across all routes to market including the on trade, off trade and wholesale. Accordingly, some of these terms of sale may not apply to your route to market.
1.8. References to "your nominated distributor" in these terms of sale are relevant only where you have contracted a third-party distributor for your secondary distribution in the on trade. In this scenario, our responsibility is limited to delivering the products to the depots of your nominated distributor. The onward delivery to you or your outlets is the responsibility of your nominated distributor.
2. Orders, Delivery and Returns
2.1. All orders shall be deemed to be an offer by you to purchase products pursuant to these terms of sale. This includes orders submitted by your nominated distributor on your behalf where you are making payment for the products to us. No order shall be binding on us until it is accepted over the telephone or by electronic communication by one of our authorised representatives or confirmed by us in writing. For an order to be eligible for acceptance it must meet the minimum order value. The minimum order value will be set by us at our absolute discretion from time to time.
2.2. Time of delivery shall not be of the essence and we shall not be liable for any loss or damage whatsoever arising as a result of failure to deliver products by any particular date, provided that we use reasonable endeavours to deliver the products to you or your nominated distributor within a reasonable timescale.
2.3. We may deliver the products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment. We do not sell products on a “sale or return” basis, unless specifically agreed with you in writing.
2.4. A deposit may be charged by us on returnable containers (as defined in condition 3.2) which will be credited to your account on their prompt return in good condition. We also reserve the right to charge a replacement cost where a returnable container is not returned to us, or to levy a reasonable charge where a returnable container is returned to us damaged. The return of kegs and casks is subject to the keg balancing scheme outlined in condition 4.11.
2.5. We will deliver the products to the agreed delivery location. You will make sure, or shall procure that your nominated distributor ensures, that the premises to which the products are to be delivered are compliant with all relevant health and safety legislation and codes of practice. If any premises are not compliant, we shall be entitled to suspend deliveries until they are compliant, without any liability to you. Alternatively, we may agree with you, or your nominated distributor, to deliver the products to the nearest safe place until all identified health and safety concerns have been addressed at the originally agreed delivery location. Delivery in respect of any product is completed on arrival of the relevant product at the agreed delivery location or nearest safe place (where relevant). If we have specifically agreed with you that you will collect the products (backhaul), you will collect the products from the agreed delivery location at the time specified by us, in which case delivery in respect of any such product is completed on the completion of loading of the relevant product.
2.6. We reserve the right to make an additional charge if you, or your nominated distributor, request any unscheduled delivery or emergency delivery.
2.7. If you, or your nominated distributor, refuse to accept a delivery, or are not available to accept a delivery, for whatever reason, we reserve the right to charge you the cost of carriage both to and from your, or your nominated distributor’s, premises, in addition to a reasonable administration charge and any other claim we may have, and we may resell or otherwise dispose of all or part of the products. Similarly, if you, or your nominated distributor, fail to collect the products at the agreed delivery location at the agreed time, we reserve the right to charge you storage costs, in addition to a reasonable administration charge and any other claim we may have, and we may resell or otherwise dispose of all or part of the products.
2.8. Acceptance of delivery, or collection, of the products (as the case may be) by you or your nominated distributor shall be deemed conclusive evidence of your acceptance of these terms of sale.
2.9. Upon delivery or collection (as the case may be), all products should be examined and any loss or damage communicated to us by either telephone (0345 878 7071) or by email to service@heineken.co.uk and, where the products are delivered, the carriers notified in writing on the same day. We shall be entitled to treat any signature obtained in good faith as binding you. Claims cannot be entertained and we accept no liability for missing or damaged products not notified to us within 24 hours of delivery.
2.10. In respect of the non-delivery or non-collection of products for which an invoice has been raised, any claim must be made in writing to us within five days of the date of the invoice. Any claim in respect of incorrect pricing must be made in writing to us within fourteen days of the date of the invoice.
2.11. You agree that you will not bring any claim relating to these terms of sale (in contract, tort, negligence or otherwise) personally against any director, officer, employee or consultant of ours.
2.12. It is a condition of these terms of sale that any products supplied under it shall not be exported outside of the UK without our prior written agreement. If you are an approved wholesaler of our products then you must ensure that this condition 2.12 is replicated in your terms and conditions with your customer.
2.13. Our products are intended for the UK market and any onward sale or related duties etc. payable or non-UK compliance requirements shall be solely your responsibility. Our products comply with applicable UK requirements for labelling. We make no guarantee that the product labelling complies with any local law requirements which may apply outside of the UK. Any changes to the information on labels produced by us will be solely the responsibility of the person that makes such change. If you intend to export the product outside of the UK, you are responsible for ensuring the label complies with any local law requirements. You will keep us fully indemnified at all times on demand against any assessments, claims, demands, losses, liabilities or expenses which we incur as a result of any failure by you to fulfil your obligations under such legislation or procedures.
2.14. If you are wholesaling products, you warrant and confirm that you have been approved for registration with AWRS (the Alcohol Wholesaler Registration Scheme pursuant to HMRC’s Excise Notice 2002), you will comply with the conditions of that approval and you will inform us of any cancellation or change to your AWRS registration. If you are exporting products, you warrant and confirm that you have been approved for registration with WOWGR (Warehousekeepers and Owners of Warehoused Goods Regulations) and you will inform us of any cancellation or change to your WOWGR registration.
2.15. If we agree to supply you with products upon which excise duty (or other duties or taxes) has not been paid, it will be on the strict condition that you complete our due diligence questionnaire and comply with all legislation and procedures (whether legally binding or not) relating to excise duty suspension or such other regime as may be applicable, including receipting the products in the Excise Movement and Control System within 5 business days of delivery of the relevant products to you. You will keep us fully indemnified at all times on demand against any assessments, claims, demands, losses, liabilities or expenses which we incur as a result of any failure by you to fulfil your obligations under such legislation or procedures. We shall not be obliged to provide you with any certificate or similar relating to payment of excise duty on any delivery. The duty status shall be shown on the delivery note in question, a copy of which should be retained for your records.
2.16. Any amount of duty shown on invoices and credit notes is calculated by reference to the rates of duty applicable at the date of delivery. If you intend to claim duty drawback from HMRC, invoices must be supported by a valid duty status letter from us.
3. Storage, Handling and Resale of Products
3.1. You shall take all reasonable steps, and shall use your reasonable endeavours to procure that your customers and your nominated distributor take all reasonable steps, to preserve the quality of the products and any bottles, cases, canisters, kegs, casks, crates, pallets or other containers and packaging (“containers”) from the time of delivery to you or your nominated distributor, whichever is earlier, until dispensed to the ultimate consumer. This includes:
3.1.1. storing the products, containers and equipment (as defined in condition 6.1) in clean, sound and dry premises, out of direct sunlight and within appropriate temperatures (ensuring that the products do not freeze at any time) and other ambient conditions;
3.1.2. observing any guidelines issued by us concerning the storage, temperature and method of dispensing to the ultimate consumer;
3.1.3. transporting the products, containers and equipment carefully and in suitably adapted vehicles; and
3.1.4. implementing proper stock rotation procedures to ensure that the products with the earlier “Best Before” date are delivered and used first (but not selling products which are past their “Best Before” date).
3.2. Where supplied with kegs, casks and bulk tankers under the deposit scheme outlined in condition 2.4 or the keg balancing scheme outlined in condition 4.11 (“returnable containers”), you shall take all reasonable steps to preserve the quality of those returnable containers from the time of delivery to you or your nominated distributor, whichever is earlier, until returning them to us. Subject to condition 2.4, title to the returnable containers shall at all times remain vested in us or our nominated distributor from time to time.
3.3. You shall allow us access to your premises, and procure access for us to your nominated distributor’s premises, and facilities where the products, containers, returnable containers or equipment are stored and handled (and shall, upon reasonable request, provide us with details of your own customers and ensure that they allow us access to their premises and facilities), so we can check compliance with these terms of sale.
3.4. You shall co-operate fully in the event of a recall of the products, containers, returnable containers or equipment and you shall provide such co-operation and assistance as we may reasonably request in order to comply with applicable legal requirements relating to the products, containers, returnable containers or equipment or any part of them.
3.5. You shall ensure, and shall use reasonable endeavours to procure that your customers and your nominated distributor ensure, that the products remain in the original containers in which they are supplied until sold or dispensed to the ultimate consumer (this does not apply to bulk products) and that any markings (including any trade marks), numbers or references indicated on the containers are not covered, defaced, altered or erased.
3.6. Subject to mandatory laws, you shall not, and shall procure that your customers and your nominated distributor shall not, without our prior written consent:
3.6.1. use any of the names, devices or logos applied by us to any of the products, containers or equipment, except for the purpose of identifying and promoting the products in a manner which is acceptable to us; or
3.6.2. sell, dispose of or describe the products under or by reference to any name or description other than the name or description applied by us.
3.7. You shall ensure, and shall use reasonable endeavours to procure that your customers ensure, that the products are not the subject of any promotions or activity that are otherwise than in accordance with the guidance published by the Portman Group and the British Beer and Pub Association relating to responsible drinking and promotions.
3.8. The residual contents of any returnable containers which are collected for return to us (or our contractor) is our property from the time they are collected (except where title did not transfer to you prior to such collection, in which case title will always have vested in us), without any further payment by us. You will have no further rights in those residual contents.
3.9. We may print bar codes on the products, in accordance with the rules of the GS1 UK. We shall not be liable to you in the event of any omission or error in such bar codes.
4. Prices
4.1. Subject to condition 4.2, the prices charged for products will be those applied by us on the date of acceptance of your order. All prices quoted are exclusive of Value Added Tax unless otherwise stated. VAT shall be payable by you at the prevailing rate, subject to receipt of a valid VAT invoice from us.
4.2. Any increases in UK alcohol duty rates or other taxes, or any third party product price increases, will be passed on immediately in full. In the event of any such change, orders accepted but not delivered at the date of such change will be fulfilled at the revised prices.
4.3. We may pass on any government ratified charges/fees in full. We shall give you reasonable notice of any such charges.
4.4. Unless otherwise agreed, where we agree to pay you a retrospective discount under any contract we may have with you, such retrospective discount payment will not include VAT. In accordance with HMRC VAT treatment under Public Notice 700 18.2, we will not reduce the output tax due and you should not reduce the input tax being claimed.
4.5. The prices quoted for products are inclusive of carriage (unless expressly agreed to and stated as otherwise) to U.K. mainland premises, excluding Northern Ireland, Scottish Islands, Isle of Man, Channel Islands and Isles of Scilly. We reserve the right to charge for any deliveries which we believe (acting reasonably) cost significantly more than our average cost to deliver. If products are supplied to premises outwith the UK, additional costs may be passed on to you, including (where appropriate) any rise in cost due to currency fluctuations.
4.6. Unless you are an approved wholesaler of ours and/or an off trade customer and are purchasing products on that basis, all prices are quoted to you on the basis that the products are being purchased by you for retail sale to end consumers for consumption on premise at an outlet agreed and approved by us.
4.7. Where you purchase as an approved wholesaler, all prices are quoted to you on the basis that the products are being purchased by you for onward sale to retail customers who will subsequently sell to end consumers for consumption on premise at an outlet. For tax/legal compliance purposes, we may from time to time ask you to demonstrate to us where you intend to onward sell our products.
4.8. Where you purchase as an off trade customer, all prices are quoted to you on the basis that the products are being purchased by you for onward sale through your retail premises or via your website to end consumers for consumption off premise.
4.9. Without limiting our other rights and remedies, should the products be sold other than in accordance with the conditionality set out in conditions 4.6, 4.7 and 4.8, we reserve the right to clawback or withhold any discounts (e.g. off-invoice, retrospective, advance), loyalty bonuses, listing fees and/or sponsorship fees granted in respect of such products, and to charge our wholesale selling price for such volume of products and any future volume of products purchased by you until such time as you prove to our reasonable satisfaction that the conditionality in conditions 4.6, 4.7 and 4.8 is being met.
4.10. We operate a keg surcharge scheme whereby we will levy a charge on certain draught keg products. We reserve the right to amend the level of keg surcharges and/or introduce new keg sizes into the scheme from time to time at our absolute discretion. We will communicate all keg surcharges and any changes in keg surcharges to you. All prices quoted are exclusive of keg surcharges unless otherwise stated.
4.11. We also operate a keg balancing scheme in respect of the kegs and casks in which the products are supplied. Under the keg balancing scheme, we will automatically count the number of our kegs and casks delivered to you and collected by our nominated distributor from you. The difference between the number of kegs and casks supplied to you and those returned will be your keg balance (“keg balance”). Any negative balance (arising because not all kegs or casks delivered to you have been returned to us through our nominated distributor) will give rise to a charge of £25 per keg or cask and will be applied to your trading account and collected on your normal payment terms. Any subsequent reduction in the keg balance shall result in a credit to your trading account of £25 per keg or cask to reduce the keg balance. Note that a positive keg balance can only be applied against a historical or a future negative keg balance, otherwise no credit will be given for a positive balance. Your keg balance will be communicated on your invoices and statements. Unless otherwise agreed, your opening keg balance will be zero, and only kegs and casks movements after the date of account opening will be recorded.
5.1. If you use eazle to purchase products from us, payment is to be made by credit or debit card at the point of purchase. In all other cases you shall make payment to us in cleared funds within such period or on such date as we shall specify to you from time to time (“due date”). If we do not give you a specific date for payment, payment shall be due within 14 days of the date of invoice.
5.2. Failure to pay any amount due to us or any other Heineken Group Company by the due date shall entitle us to suspend delivery of any undelivered orders.
5.3. If any circumstances arise which give us concerns about your solvency (in our sole and absolute discretion), we shall be entitled to suspend delivery of any undelivered orders.
5.4. Time for payment for the products shall be of the essence.
5.5. We reserve the right at any time to apply a credit limit to your trade account, and to refuse to accept any orders placed by you where the value of such orders would cause you to exceed your credit limit (unless otherwise agreed).
5.6. We reserve the right at any time to amend or withdraw any or all of the (i) payment terms, (ii) credit limit and (iii) method of payment.
5.7. If payment is not made by the due date, we reserve the right to 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) until payment is received by us in cleared funds.
5.8. We are entitled to withhold payment of any agreed discounts, bonuses, listing fees, sponsorship fees, rebates, accrual funds, overriders and/or marketing budgets and to recover any such sums already paid to you if you are in breach of these terms of sale or any contract we may have with you.
5.9. In the event of any cheques or direct debits being dishonoured, a charge of £25.00 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.
5.10. We will make your invoices and statements available to you electronically but will also provide hard copies to you on request.
5.11. If we make any payment or overpayment in error, such payment to you shall be treated as a debt due to us and you shall 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.
6. Dispense Equipment
6.1. The terms applying to dispense equipment or related installation, maintenance or support services can be found at the Technical Service Equipment Terms and Conditions section on https://www.heineken.co.uk/legal-hub/technical-service-equipment-terms-and-conditions, which terms are hereby incorporated into and form part of these terms of sale. In these terms of sale, the term “equipment” means all raising, dispense and other equipment supplied by us (or our subcontractor).
6.2. If you are wholesaling our products or you have engaged a nominated distributor, you shall provide us, or procure that your nominated distributor provides us, with reasonable data for your customers and their outlets, and products supplied to support the placement and maintenance of equipment and facilitate quality checking of our products in trade.
6.3. If you are wholesaling our products then you must ensure that the terms of this condition 6 are replicated in your terms and conditions with your customer.
7. Risk and Retention of Title
7.1. Risk of damage to or loss of the products, containers, returnable containers and equipment shall pass to you on completion of delivery to you where we are responsible for primary and secondary distribution. Where you have engaged a nominated distributor, risk shall pass to your nominated distributor on completion of delivery to your nominated distributor. In the case of bulk products, risk of damage to or loss of the products shall pass to you when the relevant tanker seal is broken.
7.2. Title to the products (but not in any returnable containers or equipment) shall pass to you only when we have received from you payment (in cleared funds) of:
7.2.1. all amounts owing in respect of these products; and
7.2.2. all other amounts then due and owing from you to us or any other Heineken Group Company, whether or not under these terms of sale.
For the avoidance of doubt, where you have engaged a nominated distributor, title shall transfer to you only when we have received payment from you in full for the relevant products. Title shall not at any point transfer to your nominated distributor.
7.3. Until title to the products passes to you, you shall (i) hold the products as our fiduciary agent and bailee (or as trustee in Scotland), (ii) keep the products separate from your own products and third party products, and (iii) ensure the products are properly stored, protected and insured by you against all risks on our behalf from the date of delivery (for an amount which is not less than the price payable to us) and clearly identified as our property.
7.4. You shall be entitled to resell or use the products in the ordinary course of your business, (provided such sale shall be on your own behalf and you shall deal as principal and not as our agent) and, in such event, title to the products shall pass to you immediately before the time such resale occurs, notwithstanding that the payment is still due. Your power of sale and permission of use referred to in this condition shall (i) automatically cease upon the occurrence of any of the events referred to in condition 10.1.1, 10.1.2, 10.1.3 or 20.1.1, 20.1.2, 20.1.3; and/or (ii) immediately cease upon notice from us to you, which notice may be given at any time when any amount is outstanding from you to us or any other Heineken Group Company, whether or not under these terms of sale.
7.5. Until title to the products passes to you, we may require you to deliver up the products to us or make the products available for collection by us in the event that you fail to make payment to us under these terms of sale or we have concerns (in our sole and absolute discretion) about your solvency. If you fail to do so, you hereby irrevocably agree that we (or our representatives) may enter your premises or any third party premises where the products are stored and repossess the products.
7.6. We (or our subcontractors) may enter your premises or any third party premises where the products are stored at any time in order to repossess the returnable containers in the event that you fail to make payment to us or we have concerns (in our sole and absolute discretion) about your solvency.
7.7. You shall not be entitled to (nor purport to) sell (other than in accordance with condition 7.4), mortgage, encumber, part with possession of, pledge or charge by way of security any of the products, containers, returnable containers or equipment which remain our property (and must remain identified as such) or allow any lien or encumbrance to arise over them. If you do so or purport to do so, all money owing by you to us shall become immediately due and payable, and we shall have the right to recover our products, containers, returnable containers and equipment.
7.8. The rights and remedies conferred to us by this condition 7 are in addition to and shall not in any way limit our other rights, including our right to sue for the price of the products (even if title to the products has not passed) and to recover our products, containers, returnable containers and equipment.
8. Liability
8.1. 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, (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (iv) defective products under the Consumer Protection Act 1987; or (v) anything else that cannot be excluded by the operation of law.
8.2. Subject to condition 8.1, we shall under no circumstances whatsoever be liable to you (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for:
8.2.1. any loss of profit;
8.2.2. loss of business or business opportunity;
8.2.3. loss of revenue;
8.2.4. loss of anticipated savings;
8.2.5. depletion of goodwill;
8.2.6. or any indirect or consequential losses of any nature, howsoever arising, under or in connection with these terms of sale or any contract we may have with you.
8.3. Subject to conditions 8.1, 8.2 and 8.4, our total aggregate liability to you in respect of all other losses arising under or in connection with these terms of sale and any contract we may have with you, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise shall be limited to the price of the products purchased by you directly from us in the preceding three months.
8.4. We shall not be liable to you or be deemed to be in breach of these terms of sale or any contract we may have with you by reason of any delay in performing, or any failure to perform, any of our obligations, if the delay or failure was due to your, or your nominated distributor’s fault, or due to any cause beyond our reasonable control. This includes strikes, lockouts 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.
8.5. There are no conditions, warranties, representations or terms, express or implied, that are binding on us except as specifically stated in these terms of sale or any contract we may have with you. Any condition, warranty, representation or term concerning the products which might otherwise be implied into or incorporated in these terms of sale or any contract we may have with you, whether by statute, common law or otherwise, is hereby expressly excluded.
8.6. You shall indemnify us against any third party claims, losses, damages, expenses and costs we incur as a result of your negligence, or your nominated distributor’s negligence, or any breach by you of these terms of sale or any contract we may have with you.
9. POS Material
9.1. Any point of sale, temporary bars, display cases, activation materials or any other promotional material or items (the “POS Materials”) supplied to you, other than such items that you have paid for in full, shall at all times remain in our ownership. We shall be entitled at any time to request the return of or to attend your premises for the purpose of removal of any POS Materials. You shall take good and proper care of such POS Materials whilst in your possession or under your control, and shall replace or make good any damage caused to them or any deterioration in such POS Materials whether the same arises by fair wear and tear or otherwise. You shall afford us (or any nominated sub-contractor) all access that may be required for the purposes of the installation, removal, maintenance or replacement of the POS Materials. You shall not sell, assign, pledge, charge, rent or in any other way part with possession of the POS Materials or utilise such POS Materials in relation to the dispense, sale or promotion of products not supplied by us.
10. Insolvency
10.1. We may terminate our trading relationship with you or suspend further deliveries to you (without any liability to you) if:
10.1.1. (i) you become unable to pay your debts as they fall due; (ii) you commence negotiations with your creditors with a view to rescheduling or entering into an arrangement, compromise or composition in satisfaction of any of your debts; (iii) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; (iv) the value of your assets is less than your liabilities; or (v) your financial position deteriorates to such an extent that, in our opinion, your capability to adequately fulfil your obligations to us under these terms of sale or any contract with us has been placed in jeopardy; or
10.1.2. any steps are taken with a view to:
10.1.2.1. appointing an administrator, receiver, administrative receiver, liquidator (provisional or following a winding up), trustee or other similar officer in respect of you or your assets;
10.1.2.2 enforcing payment of any of your debts or of any security you have granted; or
10.1.2.3. obtaining a moratorium in respect of your debts; or
10.1.3. we believe that any of the events referred to in conditions 10.1.1and 10.1.2 are reasonably likely to occur and we notify you accordingly.
10.2. Without limiting our other rights and remedies, we may suspend provision of the products under any contract with you if you become subject to any of the events listed in condition 10.1, or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due to us on or before the due date for payment.
10.3. If we terminate our trading relationship with you for any reason:
10.3.1. the price payable for any products that have been delivered to you, or your nominated distributor, but not paid for shall become immediately due and payable, regardless of any previous agreement or arrangement to the contrary; and
10.3.2. you shall not be entitled to any discounts (retrospective or otherwise), rebates or overriders, and any discounts, rebates or overriders which have accrued but not yet been paid will be cancelled and any rights to these shall automatically cease.
10.4. Any exercise by us of our rights under this condition 10 or condition 20 will not affect any of our other rights or remedies under these terms of sale or any contract we may have with you and (subject to condition 10.3) shall be without prejudice to any rights and remedies that have accrued as at termination. Any provision of these terms of sale or any contract we may have with you that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11. Consumer Orders
This condition 11 applies only if you are not a business but are a “consumer” within the meaning of The Consumer Rights Act 2015. If, after we have accepted an order from you, you wish to withdraw from a binding order then you may do so by informing us no later than 14 working days after the date of delivery of the products to you or your nominated distributor. If you notify us that you wish to cancel the order, and we have already delivered the products to you or your nominated distributor, then you must return, or arrange for the return of, the products to us at your own cost and risk. Provided that the products are returned in the same condition as when we supplied them to you or your nominated distributor, we shall reimburse all sums paid by you for those products less any reasonable costs of delivery.
12. Data Protection
Any data processed by us in connection with these terms of sale or any contract we may have with you shall be in accordance with our privacy policy (available here) and the following data protection laws: the Data Protection Act 2018 (“DPA”), other data protection legislation in force from time to time in the UK, and to the extent applicable, the EU General Data Protection Regulation 2016/679 (with the DPA taking priority in the event of conflict).
13. Money Laundering
13.1. We are required to comply with money laundering legislation and regulations designed to combat the laundering of the proceeds of crime. Accordingly, we:
13.1.1. reserve the right to refuse to accept any orders and/or withhold deliveries until we have obtained satisfactory evidence of your identity and the identity of any beneficial owners via a credit reference agency or directly from you; and
13.1.2. may be required to notify the appropriate authorities of issues relating to your affairs.
13.2 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. Waiver
No failure or delay by either of us in exercising our rights or remedies under these terms of sale or any contract we may have with you shall 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 these terms of sale or the terms of any contract we may have with you by the other shall be construed as a waiver of any subsequent breach of the same or any other provision.
16. Third Party Rights
Except as expressly provided in these terms of sale or any contract we may have with you, no third party shall have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of these terms of sale or any contract we may have with you.
17. Compliance with Laws
In performing your obligations under these terms of sale or any contract we may have with you, you shall, and shall 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, the Data Protection Laws, the Modern Slavery Act 2015 and the Competition Act 1998.
18. Recycling
We have fulfilled our duty in applying the waste hierarchy as required by regulation 12 of the Waste (England and Wales) Regulations 2011 and Section 34 of the Environmental Protection Act 1990 as amended by the Waste (Scotland) Regulations 2012. We are the seller of products and are not responsible for the waste. Our nominated distributor, as transferor of waste, and you, as a producer of waste, are responsible under the Waste (England and Wales) Regulations 2011 and Waste (Scotland) Regulations 2012.
19. Notice
A notice given to a party under or in connection with these terms of sale or any contract we may have with you shall be in writing and sent to the party in accordance with the following:
(a) 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;
(b) to you at your registered office or trading address (where different) or by email to any email address that we hold for you,
or as otherwise notified in writing to the other party. Any notice shall be deemed to have been received (a) if delivered by hand, on signature of a delivery receipt; (b) 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; and (c) if sent to you by email, at the time the email is sent.
20. Termination
20.1. Without prejudice to our rights under condition 10, we shall be entitled to terminate our trading relationship with you:
20.1.1. immediately if you commit a material breach of any of these terms of sale or fail to pay any amount due on or before the due date for payment;
20.1.2. immediately if you or your personnel subject our staff or anyone involved in our supply chain to any violence, physical, verbal, sexual or psychological harassment, bullying, abuse or threat, whether in person, on the phone or contained in any correspondence; or
20.1.3. on 30 days prior written notice to you at any time.
20.2. In the event of the early termination of our trading relationship with you, we reserve the right to recover any losses which we incur as a result of such early termination, which losses shall include any loss of profit.
21. 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 shall have exclusive jurisdiction over any disputes arising, unless your business is in Scotland, in which case such jurisdiction shall be non-exclusive.
22. General
22.1. 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.
22.2. All copyright, patent, trade mark, trade secret, design rights, domain names and other proprietary and intellectual property rights whether registered or unregistered in the products, containers, returnable containers and equipment and information and know how which we may provide in relation to the products, containers, returnable containers and equipment (“Intellectual Property Rights”) shall (as between you and us) remain vested in us. You shall not acquire any title in the Intellectual Property Rights relating to the products, containers, returnable containers or equipment. You may not copy or imitate the Intellectual Property Rights, products, containers, returnable 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 such Intellectual Property Rights shall accrue to us.
22.3. You shall not be entitled to assign, re-sell, charge, encumber or otherwise transfer any of your rights or obligations under these terms of sale or any contract we may have with you, in whole or in part, without our prior consent and any attempt to do so will enable us to terminate our trading relationship with you without prejudice to our other rights and remedies.
22.4. Nothing in these terms of sale or any contract we may have with you 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.
23. Amendments
We reserve the right to alter these terms of sale 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.
24. Severance
If any provision or part-provision of these terms of sale or the terms of any contract we may have with you 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 shall not affect the validity and enforceability of the remaining provisions (and/or the remainder of such provision).
25. Interpretation
In these terms of sale and in any contract we may have with you:
(a) the singular includes the plural and vice versa;
(b) any phrase introduced by the terms “including”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(c) unless otherwise specified, a reference to “writing” does not include email or fax;
(d) 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);
(e) references to statutes, any statutory instrument, regulation or order shall be construed as a reference to such statute, statutory instrument, regulation or order as amended, supplemented or re-enacted from time to time; and
(f) words and expressions which are defined in the Companies Act 2006 have the same meanings as are given to them in that Act.