Terms & Conditions of Supply

Contract details

These Conditions apply together with each customer's individual contract with 40FT Brewery (the Contract Details).

The Commencement Date, Initial Term, Equipment, Equipment Value, Price, payment terms and Keg charge are each subject to the customer's individual contract. Unless that contract says otherwise, the Price is 40FT Brewery's trade price list current at the date of each Order, and payment is due 30 days from the invoice date.

This Contract is made up of the Contract Details, these Conditions and the Schedule. If they conflict, the Contract Details take priority over the Conditions, and the Conditions over the Schedule.

Conditions

1Definitions and interpretation

1.1In this Contract:

1. Business Day: a day other than a Saturday, Sunday or public holiday in England.
2. Change of Control: a change in who controls a party, within the meaning of section 1124 of the Corporation Tax Act 2010.
3. Commencement Date, Delivery Location, Equipment, Equipment Value, Initial Term and Price: as set out in the Contract Details.
4. Contract Manufacturing: where 40FT Brewery brews, fills or packages beer for the Customer to the Customer's own recipe or brand.
5. Contract Year: each 12-month period starting on the Commencement Date or an anniversary of it.
6. Customer Containers: kegs, casks or other containers supplied by or on behalf of the Customer for 40FT Brewery to fill.
7. Force Majeure Event: an event beyond a party's reasonable control, including fire, flood, extreme weather, pandemic, industrial action (other than by that party's own staff), failure of utilities or transport, or shortage of raw materials or CO2.
8. Goods: the beer and other products supplied by 40FT Brewery to the Customer.
9. Kegs: kegs, casks and other returnable containers owned by 40FT Brewery.
10. Order: the Customer's order for Goods.
11. Term: the Initial Term and any continuation of this Contract under clause 3.
12. Trade Marks: the trade marks listed in the Schedule.

1.2A reference to a statute includes it as amended or re-enacted, and any subordinate legislation made under it.

1.3Words such as "including" or "in particular" are illustrative and do not limit the words before them.

1.4"Writing" or "written" includes email.

2Application of terms

2.1These Conditions apply to every Order and every supply of Goods by 40FT Brewery to the Customer. They override any terms the Customer seeks to impose, including terms in any purchase order or similar document.

2.2The Customer confirms that it holds, and will keep in force, all licences needed to buy and sell the Goods at the Delivery Location.

3Commencement and term

3.1This Contract starts on the Commencement Date and runs for the Initial Term. It then continues until either party gives at least 6 months' written notice, which may not expire before the end of the Initial Term. It may end earlier under clause 16.

4Orders

4.1Orders may be placed by phone or email; phone Orders must be confirmed by email.

4.240FT Brewery may accept or decline any Order, or any change to an Order, at its absolute discretion. It cannot accept Orders from anyone under 18.

4.340FT Brewery will give each accepted Order an order number and, as soon as practicable, an estimated delivery date. Both parties will use the order number in all correspondence about that Order.

4.4The Customer is responsible for making sure its Orders and any specifications are complete and accurate, and for giving 40FT Brewery any information it reasonably needs to fulfil them.

5The Goods

5.1Samples, descriptions, illustrations and advertising material are only an approximate guide to the Goods and do not form part of this Contract.

5.2Because beer is a natural product, there may be minor variations in alcoholic strength (ABV) and content.

5.340FT Brewery may change the specification of the Goods to comply with law or regulation, or to make minor adjustments and improvements.

6Price and payment

6.1The Price excludes VAT, which the Customer pays in addition at the prevailing rate. Packaging, insurance and transport costs are charged in addition unless otherwise agreed in writing.

6.240FT Brewery may change its trade price list by giving the Customer at least 30 days' written notice. Orders already accepted keep the price at the date of acceptance. However, any change in alcohol duty may be passed on from the date it takes effect, without notice, including on Orders already accepted but not yet delivered.

6.340FT Brewery may invoice on or after accepting an Order. Each invoice will show the Order date, invoice number and 40FT Brewery's VAT number.

6.4The Customer shall pay each invoice in full, in cleared funds, within 30 days of the invoice date, to the bank account nominated in writing by 40FT Brewery.

6.5If the Customer pays late, then without limiting 40FT Brewery's other rights:

1. (a)the Customer shall pay interest on the overdue amount at 4% a year above the Bank of England base rate, accruing daily from the due date until payment, before or after judgment; and
2. (b)40FT Brewery may suspend all deliveries until payment is made in full.

6.6The Customer shall pay all amounts in full without set-off, counterclaim or deduction, except as required by law. 40FT Brewery may set off any amount the Customer owes it against any amount it owes the Customer.

7Delivery

7.1Each delivery will come with a delivery note showing the order number, the type and quantity of Goods, any special storage instructions and, for deliveries in instalments, the balance still to come.

7.2Delivery is complete when the Goods arrive at the Delivery Location. Delivery dates are estimates only, and time of delivery is not of the essence.

7.340FT Brewery is not liable for any delay or failure to deliver caused by a Force Majeure Event or by the Customer failing to give adequate delivery instructions.

7.4If 40FT Brewery fails to deliver for any other reason, its liability is limited to the Customer's extra cost of buying similar replacement goods at the cheapest available price, less the Price of the Goods.

7.5If the Customer has not taken delivery within 10 Business Days of an attempted delivery, 40FT Brewery may resell or dispose of the Goods. After deducting reasonable storage and selling costs, it will account to the Customer for any excess over the Price or charge the Customer for any shortfall.

7.6The Customer may not reject a delivery that is within 5% of the quantity ordered. If the Customer notifies 40FT Brewery of the difference, the invoice will be adjusted pro rata.

7.740FT Brewery may deliver in instalments, each invoiced and paid for separately. A delay or defect in one instalment does not entitle the Customer to cancel any other.

8Kegs and containers

8.1Kegs remain 40FT Brewery's property at all times, even when title to the beer in them has passed to the Customer.

8.2The Customer shall:

1. (a)make empty Kegs available for collection within 30 days of delivery, or at such other times as 40FT Brewery reasonably requests;
2. (b)use Kegs only for Goods supplied by 40FT Brewery, and not refill, sell, lend or pass them to anyone else; and
3. (c)keep Kegs safe and in good condition, fair wear and tear excepted.

8.3The Customer shall pay the Keg charge in the Contract Details for each Keg that is lost, damaged or not made available for collection within 60 days of delivery. 40FT Brewery may also ask for a deposit on Kegs.

8.4Where the Customer supplies Customer Containers, including for Contract Manufacturing, the Customer warrants that it owns them or holds them under a valid agreement with their owner (including pooling or rental providers such as Kegstar or eKeg) which permits them to be filled by 40FT Brewery for the Customer. 40FT Brewery may rely on this warranty without further enquiry.

8.5The Customer is responsible for all rental, hire, tracking, loss and late-return charges for Customer Containers, and for returning them to their owner. Customer Containers remain at the Customer's risk at all times.

8.640FT Brewery may refuse to fill any Customer Container that appears damaged, unsafe or unsuitable. It is not liable for any defect in the Goods caused by the condition of a Customer Container.

8.7The Customer shall indemnify 40FT Brewery on demand against any claim, charge, loss or cost brought by or owed to the owner of a Customer Container.

9Quality

9.140FT Brewery warrants that on delivery, and for 3 months after delivery or until the best-before date if sooner (the warranty period), the Goods will:

1. (a)conform in all material respects with their description;
2. (b)be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
3. (c)be fit for any purpose held out by 40FT Brewery.

9.2If, during the warranty period, the Customer notifies 40FT Brewery in writing that Goods do not meet clause 9.1, gives 40FT Brewery a reasonable chance to examine them and, if asked, returns them at the Customer's cost, 40FT Brewery will at its option replace them or refund their price in full.

9.340FT Brewery is not liable under clause 9.1 if:

1. (a)the Customer keeps using or selling the Goods after notifying the defect;
2. (b)the defect arises from the Customer not following 40FT Brewery's storage, handling or dispense instructions or, if there are none, good trade practice (including line cleaning and cellar temperature);
3. (c)the Customer alters or tampers with the Goods without 40FT Brewery's written consent;
4. (d)the defect arises from wilful damage, negligence, or abnormal storage or working conditions;
5. (e)the defect arises from the condition of a Customer Container; or
6. (f)the Goods differ from their description because of changes made to comply with law or regulation.

9.4This clause 9 sets out 40FT Brewery's only liability for Goods that do not meet clause 9.1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are excluded to the fullest extent permitted by law.

9.5These Conditions apply to any replacement Goods.

10Title and risk

10.1Risk in the Goods passes to the Customer when they arrive at the Delivery Location.

10.2Title to the Goods passes to the Customer only when 40FT Brewery has received payment in full in cleared funds.

10.3Until title has passed, the Customer shall:

1. (a)store the Goods so they remain identifiable as 40FT Brewery's property;
2. (b)not remove or obscure any identifying mark or packaging;
3. (c)keep the Goods in satisfactory condition and insured for their full price;
4. (d)notify 40FT Brewery immediately if any event in clause 16.1(b) or 16.1(c) happens to it; and
5. (e)give 40FT Brewery any information about the Goods it reasonably asks for.

10.440FT Brewery may recover Goods in which title has not passed. The Customer irrevocably permits 40FT Brewery, its staff and agents to enter its premises, including with vehicles, to check compliance with clause 10.3 and to recover those Goods or any Kegs.

10.540FT Brewery may at any time choose to pass title to the Customer, in which case the Customer shall pay the Price immediately.

11Equipment

This clause applies only where Equipment is listed in the Contract Details.

11.140FT Brewery will provide the Equipment for use at the Delivery Location for the Term, unless this Contract ends earlier or an event in clause 16.1 occurs (whether or not 40FT Brewery chooses to terminate) (the Rental Period).

11.240FT Brewery will use reasonable endeavours to deliver and install the Equipment on the agreed date. It is not liable for delay or failure caused by the Customer or a Force Majeure Event.

11.3The Customer shall have an authorised representative present at installation. Their acceptance is conclusive evidence that the Equipment was in good condition and fit for purpose, except for latent defects not reasonably apparent on inspection.

11.4The Customer shall, at its own expense, provide all access, facilities and safe working conditions needed for delivery and installation.

11.5The Equipment remains 40FT Brewery's property at all times. The Customer has only the right to possess and use it under this Contract.

11.6Risk in the Equipment passes to the Customer on delivery and stays with the Customer until the Equipment is returned to 40FT Brewery. The Customer shall notify 40FT Brewery in writing immediately of any loss of or damage to the Equipment.

11.7During the Rental Period the Customer shall:

1. (a)keep the Equipment at the Delivery Location, in a suitable environment, used only for its intended purpose by trained staff following 40FT Brewery's instructions;
2. (b)take all reasonably practicable steps, including following 40FT Brewery's safety instructions, to keep the Equipment safe when used, cleaned or maintained;
3. (c)unless 40FT Brewery directs otherwise, maintain the Equipment at its own expense in as good condition as on delivery (fair wear and tear excepted), including replacing worn, damaged or lost parts;
4. (d)not alter the Equipment or remove any part without 40FT Brewery's written consent. Any approved replacement part becomes 40FT Brewery's property on installation;
5. (e)not move the Equipment from the Delivery Location without 40FT Brewery's written consent;
6. (f)use the Equipment only for Goods supplied by 40FT Brewery, unless 40FT Brewery agrees otherwise in writing;
7. (g)let 40FT Brewery inspect, service and maintain the Equipment at all reasonable times;
8. (h)keep operating and maintenance records and share them with 40FT Brewery on request;
9. (i)not sell, lend, sub-let, part with control of or create any security interest over the Equipment;
10. (j)not allow the Equipment to be seized under any legal process. If it is, the Customer shall notify 40FT Brewery, use its best endeavours to secure its release at its own cost, and indemnify 40FT Brewery against all resulting losses;
11. (k)not use the Equipment for any unlawful purpose;
12. (l)keep the Equipment identifiable as 40FT Brewery's property, with a visible sign where possible; and
13. (m)at the end of the Rental Period, return the Equipment as 40FT Brewery directs or give 40FT Brewery access to remove it.

11.840FT Brewery is not responsible for loss of or damage to the Equipment caused by the negligence or misuse of the Customer or its staff, agents or contractors. The Customer shall indemnify 40FT Brewery on demand against any such loss or damage, and against any loss arising from the Customer's breach of this Contract.

12Minimum purchase obligation

This clause applies only where an Equipment Value is set out in the Contract Details.

12.1In return for the Equipment, the Customer shall buy Goods with a total Price of at least the Equipment Value in each Contract Year of the Initial Term (the Minimum Order Quantity).

12.2If the Customer does not meet the Minimum Order Quantity in a Contract Year, it shall pay 40FT Brewery the difference between the Minimum Order Quantity and the total Price of Goods it actually ordered in that year (the Deficit).

12.340FT Brewery may invoice the Deficit at any time after the end of the relevant Contract Year, and the Customer shall pay it within 30 days of the invoice date.

13Trade marks

13.140FT Brewery grants the Customer a non-exclusive right to use the Trade Marks to promote and sell the Goods from the Delivery Location, for the Term only. All rights in the Trade Marks remain with 40FT Brewery, and the Customer acquires none.

13.2The Customer shall sell the Goods, and use the Equipment, only under the Trade Marks and not with any other brand, except as permitted in any branding guidelines issued by 40FT Brewery.

13.3The Customer shall submit any intended use of the Trade Marks to 40FT Brewery for written approval before use, and comply with any rules on their use that 40FT Brewery issues.

13.4Without 40FT Brewery's written consent, the Customer shall not:

1. (a)alter or add to pump clips, labels or packaging showing the Trade Marks;
2. (b)alter or add to any promotional material supplied by 40FT Brewery;
3. (c)remove or obscure any reference to the Trade Marks or to 40FT Brewery;
4. (d)sub-license, transfer or otherwise deal with its right to use the Trade Marks;
5. (e)use the Trade Marks in its business name, or for any goods other than the Goods; or
6. (f)register or try to register any trade mark or name the same as or similar to the Trade Marks, anywhere in the world.

13.5The Customer shall not do anything that could harm the validity or reputation of the Trade Marks, and shall sign any further documents 40FT Brewery reasonably needs to protect them.

13.640FT Brewery gives no warranty that the Trade Marks are valid or do not infringe third-party rights.

13.7Each party shall promptly notify the other in writing if it becomes aware of:

1. (a)any actual or suspected infringement of the Trade Marks or other intellectual property in the Goods; or
2. (b)any claim that the Goods, or their sale or use, infringe a third party's rights.

13.8For matters under clause 13.7(a), 40FT Brewery alone decides what action to take, controls that action, pays its costs and keeps any damages recovered.

13.9For matters under clause 13.7(b), the parties shall negotiate in good faith on what steps to take and how to share the costs and any damages. If they cannot agree, either party may take the action it considers appropriate at its own expense, and keeps or bears any resulting damages.

13.10Each party shall, at the other's request and expense, give reasonable help with any action under this clause 13, provided it receives a reasonable indemnity against its costs.

13.11When this Contract ends, the Customer shall immediately stop using the Trade Marks.

14Product recall

14.1If the Customer receives a request, order or directive from a court or authority to withdraw any Goods (a Recall Notice), it shall notify 40FT Brewery immediately in writing with a copy.

14.2Unless required by law, the Customer shall not recall or withdraw any Goods without 40FT Brewery's written permission, and then only following 40FT Brewery's instructions.

15Limitation of liability

15.1Nothing in this Contract limits or excludes 40FT Brewery's liability for:

1. (a)death or personal injury caused by negligence;
2. (b)fraud or fraudulent misrepresentation;
3. (c)breach of the terms implied by section 12 of the Sale of Goods Act 1979;
4. (d)defective products under the Consumer Protection Act 1987; or
5. (e)anything else that cannot lawfully be limited or excluded.

15.2Subject to clause 15.1, 40FT Brewery is not liable, in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of business opportunity, loss of reputation, or indirect or consequential loss.

15.3Subject to clause 15.1, 40FT Brewery's total liability for all other losses is limited to the total sums paid and payable for the Goods under the Order to which the liability relates.

16Termination

16.1Either party may end this Contract immediately by written notice if the other party:

1. (a)commits a material breach and, if it can be remedied, fails to remedy it within 14 days of written notice;
2. (b)takes any step towards administration, liquidation, receivership or an arrangement with its creditors (other than a solvent restructuring), or any equivalent step in another jurisdiction;
3. (c)suspends or ceases, or threatens to suspend or cease, all or a substantial part of its business;
4. (d)suffers such a decline in its financial position that, in the terminating party's opinion, its ability to perform this Contract is in jeopardy; or
5. (e)undergoes a Change of Control.

16.240FT Brewery may also end this Contract immediately by written notice if the Customer has not paid any amount due within 14 days of being notified in writing to do so.

16.3When this Contract ends for any reason:

1. (a)all unpaid invoices become due immediately;
2. (b)the Customer's right to possess the Equipment ends, and 40FT Brewery may enter the Delivery Location without notice, at the Customer's expense, to remove the Equipment and any Kegs;
3. (c)rights and remedies already accrued, including claims for earlier breaches, are not affected; and
4. (d)any clause intended to continue after termination remains in force.

17General

17.1Force majeure. Neither party is liable for delay or failure caused by a Force Majeure Event, except for payment obligations. If it continues for 16 weeks, the unaffected party may end this Contract on 30 days' written notice.

17.2Assignment. The Customer may not assign, transfer, subcontract or otherwise deal with its rights or obligations without 40FT Brewery's written consent. 40FT Brewery may do so at any time.

17.3Confidentiality. During this Contract and for 2 years after it ends, neither party shall disclose the other's confidential information about its business, customers or suppliers, or use it except to perform this Contract. Each party may disclose it to its staff and advisers who need to know (and who must keep it confidential), or as required by law or a regulator.

17.4Entire agreement. This Contract is the entire agreement between the parties on its subject matter and replaces any earlier agreement. Neither party has any remedy for a statement not set out in it.

17.5Variation. No change to this Contract is effective unless in writing and signed by both parties.

17.6Waiver. A failure or delay in exercising a right is not a waiver of it, and partial exercise does not prevent further exercise.

17.7Severance. If any provision is invalid or unenforceable, it is modified to the minimum extent needed to make it enforceable, or otherwise deleted. The rest of this Contract is not affected.

17.8Notices. Notices must be in writing, delivered by hand, first-class post, next-working-day delivery, courier or email to the other party's registered office or email address notified in writing. They are treated as received: by hand, when left; by post or next-working-day delivery, at 9am on the second Business Day after posting; by courier, when signed for; by email, one Business Day after sending. This clause does not apply to serving legal proceedings.

17.9Third-party rights. Only the parties and their permitted assignees may enforce this Contract.

17.10Governing law and jurisdiction. This Contract and any dispute arising from it are governed by the law of England and Wales, and the courts of England and Wales have exclusive jurisdiction.

Schedule – Trade Marks

Questions about these terms: sales@40ftbrewery.com