BEER HAWK FRESH TERMS OF BUSINESS
The terms set out on this page apply if you are a business which is purchasing goods from us. They apply regardless of whether the business registered as a trade customer. They do not apply if you are acting as a consumer (in other words, if you are a private individual purchasing goods from us outside the scope of any business or trade). If you are a consumer, please consult our Consumer Terms of Business which are set out here.
Please read these Terms carefully, as they set out our and your legal rights and obligations in relation to the Products that we sell.
1.1 In these Terms:
“Account Opening Form” means the Beer Hawk account opening form on the Site or otherwise supplied by Beer Hawk to the Customer and signed or otherwise agreed by or on behalf of the Customer;
“Business Day” means any weekday, other than a bank or public holiday in England; “Business Hours” means between 09:00 and 17:30 on a Business Day;
“Beer Hawk” means Beer Hawk Ltd, a company incorporated in England and Wales (registration number 08118833);
“Customer” means the customer for the Products, as specified in the Account Opening Form;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected, including: (i) fire, flood, drought, earthquake or other natural disaster; (ii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom; or (iii) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
“Losses” means liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses);
“Order” means a particular contract between the parties for the sale and supply of Products entered into in accordance with Clause 3;
“Products” means products purchased by the Customer from Beer Hawk under these Terms as set out in the Order;
“Site” means trade.beerhawk.co.uk or www.FRESH.beerhawk.co.uk;
“Terms” means these terms and conditions of supply.
1.2 In these Terms, a reference to a statute or statutory provision includes a reference to: (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of these Terms.
1.4 In these Terms, “persons” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 The ejusdem generis rule is not intended to be used in the interpretation of these Terms. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.1 These Terms together with: (a) the Account Opening Form; and (b) any wholesale agreement entered into by the parties, contain the only terms and conditions upon which Beer Hawk will deal with the Customer, and govern all Orders to the exclusion of all other terms and conditions.
2.2 No variations of or additions to or substitutions for these Terms, even if included or referred to in the document or other communication in or by which an Order was placed, shall be binding on Beer Hawk unless signed or agreed by a director of Beer Hawk.
2.3 Any reference to any of the Customer’s terms and conditions in any document forming part of or evidencing an Order will not have the effect of incorporating any such terms and conditions into the Order, or of forming any other contract between the parties for the purchase of the Products. The Customer hereby waives any right it might otherwise have to rely upon the Customer’s terms and conditions.
2.4 In the event of a conflict between these Terms and any agreement referred to in Clause 2.1(b), the provisions of the latter shall prevail.
2.5 Beer Hawk shall have the right to amend these Terms from time to time. Changes to these Terms shall be effective from the moment in time at which they are published on the Site.
3.1 For an Order to come into force: (a) the Customer must make a written or oral request for Products to be delivered; and (b) Beer Hawk must confirm to the Customer, whether in writing or orally, that it will supply the Products requested by the Customer, and upon Beer Hawk’s confirmation under this Clause 3.1, an Order will come into force between the parties.
3.2 If the parties agree that delivery or collection of the Products under an Order will be by instalments, each instalment will constitute part of a single Order and not a separate Order.
3.3 Unless Beer Hawk has expressly agreed otherwise in writing, then: (a) Products are not supplied on a sale or return basis; and (b) Products may not be returned to Beer Hawk for credit or refund (subject to Clause 7.3).
3.4 For the avoidance of doubt, Beer Hawk reserves the right to refuse to enter into any Order requested by the Customer.
3.5 The images of the Products on the Site are for illustrative purposes only. The Products and packaging may vary from those images. All sizes, weights, capacities, dimensions and measurements indicated on the Site have a 2% tolerance.
4.1 If the parties agree that Beer Hawk is to arrange for the delivery of the Products to the Customer (or in the absence of any express agreement to the contrary):
4.1.1 Beer Hawk shall ensure that each consignment of the Goods is accompanied by a Delivery Note which shows the date of the Order, the Order number and the type and quantity of the Products;
4.1.2 Beer Hawk shall arrange for the delivery of the Products to the location set out in the Order or such other location as the parties may agree (the Delivery Location) at any time after Beer Hawk notifies the Customer that the Goods are ready for delivery;
4.1.3 delivery of the Goods shall be completed at the point in time at which the vehicle containing the Goods’ arrives at the Delivery Location;
4.1.4 any dates quoted for the delivery of Goods by Beer Hawk to the Delivery Location are approximate only, and the time of delivery is not of the essence. The Customer shall notify Beer Hawk in writing as soon as practicable in circumstances where Products are not delivered to the Delivery Location on the date quoted for delivery of the Goods (or on or before the last date for delivery, where a range of potential delivery dates is provided by or on behalf of Beer Hawk);
4.1.5 Beer Hawk shall not be liable for any delay in delivery of the Products or failure to deliver the Goods to the extent caused by a Force Majeure Event or the Customer’s failure to provide Beer Hawk with adequate and correct delivery instructions or any other instructions relevant to the supply of the Products;
4.1.6 if the Customer fails to accept delivery of the Products then, except where such failure is directly caused by Beer Hawk’s failure to comply with its obligations: (a) delivery of the Products shall be deemed to have been completed at the time at which Beer Hawk attempted delivery of the Products (and all costs and expenses of that deemed delivery and of the return of the Products to Beer Hawk shall be for the account of the Customer); (b) Beer Hawk shall have no further obligation to attempt to deliver the Products to the Customer; (c) (without any liability to the Customer) Beer Hawk shall have the right to return the Goods to stock after the date of deemed delivery; (d) subject in any event to the Customer having paid Beer Hawk in full (in cleared funds) for the Products, Beer Hawk shall refund to the Customer the price paid in respect of any Products returned to stock (net of the costs and expenses of the deemed delivery and return); and (e) the Customer shall be liable to Beer Hawk for any Losses caused by Beer Hawk’s failure to take delivery of the Products.
4.1.7 Beer Hawk may deliver the Products by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any instalment.
4.2 If the parties agree that the Customer is to arrange for the collection of the Products from Beer Hawk:
4.2.1 Beer Hawk shall ensure that each consignment of the Products is accompanied by a packing note (a Consignment Note) which shows the date of the Order, the Order number and the type and quantity of the Products;
4.2.2 the Customer (or the customer’s agent) shall collect the Products from Beer Hawk’s premises advised by Beer Hawk to the Customer (the Collection Location) on the Business Day designated by Beer Hawk for collection by the Customer;
4.2.3 delivery of the Products shall be completed at the time at which the Products pass over the building’s threshold at the Collection Location;
4.2.4 any dates quoted for the availability of the Products for collection from the Collection Location are approximate only, and the time of making the Products available for collection is not of the essence;
4.2.5 Beer Hawk shall not be liable for any delay in making the Products available for collection or failure to make the Products available for collection to the extent caused by a Force Majeure Event or the Customer’s failure to provide Beer Hawk with adequate and correct instructions relevant to the supply of the Products;
4.2.6 if the Customer fails to collect the Products from the Collection Location on the date or prior to the expiry of the period referred to in clause 4.2.2 (as the case may be) then, except where such failure is directly caused by Beer Hawk’s failure to comply with its obligations: (a) delivery of the Products shall be deemed to have been completed at the expiry of the date or upon the expiry of the period for delivery; (b) Beer Hawk shall have no obligation to attempt to deliver the Products to the Customer; (c) (without any liability to the Customer) Beer Hawk shall have the right to return the Products to stock after the date of deemed delivery; (d) subject in any event to the Customer having paid Beer Hawk in full (in cleared funds) for the Products, Beer Hawk shall refund to the Customer the price paid in respect of any Goods returned to stock; and (e) the Customer shall be liable to Beer Hawk for any Losses caused by Beer Hawk’s failure to take delivery of the Products;
4.2.7 Beer Hawk may make the Products available for collection in instalments. No delay in making an instalment available for collection or defect in an instalment shall entitle the Customer to cancel any instalment.
5.1 Legal and equitable title to the Products will pass from Beer Hawk to the Customer upon the later of: (a) delivery or collection of the Products; and (b) receipt by Beer Hawk of all amounts due from the Customer to Beer Hawk under the relevant Order.
5.2 Until title to the Products has passed to the Customer: (a) the Customer will hold the Products as fiduciary agent and bailee of Beer Hawk; (b) the Customer will: (i) store the Products in a secure, safe, dry and clean environment out of direct sunlight at 12 degrees Celsius (+/- 1 degree) and separately from other products and goods; (ii) ensure that the Products are easily identifiable as belonging to Beer Hawk; (iii) not deface, destroy, alter or obscure any identifying mark on the Products or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Products; and (v) deliver up the Products to Beer Hawk upon demand.
5.3 Beer Hawk shall be entitled, without further notice, to inspect or recover possession of any Products to which it retains title; and the Customer grants to Beer Hawk and its employees and agents an irrevocable licence to enter at any time any premises where such Products are or may be situated for the purpose of inspecting or removing such Products.
5.4 Beer Hawk may bring an action for payment for Products, and any other amounts due under an Order, notwithstanding that title to the Products has not passed to the Customer.
5.5 This Clause 5.5 applies if and only if Beer Hawk has expressly agreed in writing that the Products are supplied on a sale or return basis. If this Clause 5.5 applies: (a) the parties shall agree a specific date and time period for the return or collection of the Products; (b) Beer Hawk may require payment for Products supplied on a sale or return basis in advance of delivery or collection, or in advance of the delivery or collection of unsold Products; (c) title to each Product supplied on a sale or return basis shall remain with Beer Hawk until the relevant Products are sold by the Customer to an end-customer, upon which it will pass to the Customer; (d) if the Products were originally delivered by or on behalf of Beer Hawk, then the Customer must ensure that unsold Products are made available for collection from the premises to which they were delivered properly packed upon the date and within the time period referred to in Clause 5.5(a); (d) if the Products were originally collected by or on behalf of the Customer, then the Customer must ensure that the unsold Products are returned to Beer Hawk’s premises properly packed upon the date and within the time period referred to in Clause 5.5(a); (e) if the Customer has paid for Products that are supplied and returned in accordance with this Clause 5.5, then Beer Hawk will refund to the Customer those payments, less any deductions under Clause 5.5(f ), 5.5(g) or any other provision of these Terms; (f) the Customer must pay Beer Hawk the full price for any Products returned to Beer Hawk under this Clause 5.5 that are damaged or otherwise unsaleable, and any Products that are not returned to Beer Hawk upon the date and within the time period referred to in Clause 5.5(a); (g) there shall be a restocking charge of 10% of the Price payable by the Customer to Beer Hawk in respect of Products returned to Beer Hawk under this Clause 5.5; and (h) accordingly, Clause 5.1 shall not apply if Products are supplied on a sale or return basis and Clause 5.2 and 5.3 shall apply until such time as the Products are returned to Beer Hawk in accordance with this Clause.
6.1 The Customer will not represent to any person that it is an agent of Beer Hawk.
6.2 The Customer will not take any action or do any thing which would or would be likely to damage the reputation or goodwill of Beer Hawk or Beer Hawk’s brands or trade marks, or bring Beer Hawk into disrepute.
6.3 The Customer will not, without Beer Hawk’s prior written consent, make or give any promises, representations, warranties or guarantees: (a) on behalf of Beer Hawk; or (b) in relation to the Products (other than those set out in an Order in relation to the Products or otherwise mandatory under applicable law).
6.4 The Customer must comply with all applicable laws, rules and regulations relating to, and must obtain all licences, permits and approvals required in relation to: (a) the marketing, promotion, advertising and making available for sale of the Products; and (b) the distribution, sale, supply and delivery of the Products.
6.5 The Customer shall indemnify and keep indemnified Beer Hawk against any and all Losses arising out of any breach by the Customer of this Clause 6.
7.1 The Customer must inspect the Products promptly upon delivery or collection, and must: (a) report any mistakes in the consignment as to Product quantity or type; (b) report any issues relating to the sell-by dates or use-by dates marked on the Products and their packaging; and (c) report any faults in the Products that would be apparent upon a reasonably thorough inspection, within 48 hours following the delivery or collection.
7.2 If any mistakes in a consignment of Products, date issues or faults in a Product referred to in Clause 7.1 are not reported in accordance with Clause 7.1, then Beer Hawk may decline to issue any refunds, credits or replacements and the Customer will continue to be liable for payment of the price in respect of such consignment and such Products.
7.3 Subject to Clauses 7.1 and 7.2, if Products do not comply with any warranty given by Beer Hawk under an Order, the Customer may, with the prior agreement of Beer Hawk, make those Products available for collection by Beer Hawk (or if the Products were collected by the Customer, return those Products) for (at the option of Beer Hawk): (a) a full credit of the Price paid to Beer Hawk for such Products; (b) replacement Products; or (c) a credit note in respect of the Price of the Products, to be offset against future purchases from Beer Hawk.
7.4 Products made available for collection or returned under Clause 7.3 must be properly packed and made available for collection or returned in accordance with the reasonable instructions of Beer Hawk. Any Products returned in contravention of this Clause 7.4 will not be the subject of any credits or replacements and the Customer will continue to be liable for payment of the Price in respect of such Products.
8.1 As between Beer Hawk and the Customer, all Intellectual Property Rights embodied within the Products and any promotional or other supporting materials provided to the Customer by Beer Hawk in connection with the Products shall belong to Beer Hawk. Intellectual Property Rights means all intellectual property rights in any part of the world including copyright, patents, design rights, trade and service marks, rights in business and trade names and get-up, rights in domain names, database rights, rights in confidential information and know-how, and (in each case) whether or not registered or registerable and rights of a similar or corresponding character and in all applications and rights to apply for protection of any of the foregoing.
8.2 In circumstances where the Customer becomes aware of any actual, suspected or threatened infringement of any of the Intellectual Property Rights referred to in Clause 8.1, or becomes aware of any claim that any of those Intellectual Property Rights infringe the rights of any third party, the Customer shall immediately notify Beer Hawk of the fact and circumstances of that infringement. Beer Hawk shall have exclusive control over, and conduct of, all claims and proceedings relating to the Intellectual Property Rights referred to in clause 8.1 and the Customer shall (at Beer Hawk’s cost) provide such information and assistance as Beer Hawk may reasonably require. The Customer shall not make any admissions in respect of such claims or proceedings. As between Beer Hawk and the Customer, Beer Hawk shall be entitled to retain all sums recovered in any claims and proceedings relating to the Intellectual Property Rights referred to in Clause 8.1 for its own account.
8.3 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, other than in performance of its obligations under these Terms and except as required by law, court or government authority. No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the contract.
8.4 The Customer agrees that Beer Hawk may obtain and retain credit references relating to the Customer from third parties (including credit reference agencies) and that Beer Hawk may (without prejudice to its other rights and remedies in circumstances of non-payment) notify credit reference agencies in circumstances of non-payment by the Customer of amounts owed to Beer Hawk.
9.1 The prices of the Products will be as quoted on the Site at the time of the Order. In the case of manifest error of the prices quoted on the Site, Beer Hawk reserves the right to charge the correct price. In the event an Order has been confirmed, the Customer shall be entitled to cancel the Order.
9.2 Prices for Products may change from time to time, but changes will not affect any pre-existing Order.
9.3 The price of the Goods is exclusive of amounts chargeable in respect of value added tax (VAT) unless otherwise stated. The Customer shall, on receipt of a valid VAT invoice from Beer Hawk, pay to Beer Hawk such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
9.4 The price of a Product does not include delivery charges. Delivery charges are advised prior to the Order and confirmed on the invoice.
9.5 Beer Hawk may issue an invoice for an Order to the Customer at any time after the Products have been delivered to, or made available for collection by, the Customer.
9.6 The Customer shall pay the invoice in full without set off and in cleared funds in pounds Sterling by on or prior to the date for payment which is stated on the invoice. Payment shall be made to the bank account nominated in writing by Beer Hawk. Time of payment is of the essence. Any queries with respect to an invoice must be raised by the Customer to Beer Hawk prior to the due date for payment.
9.7 If the Customer does not pay any amount properly due to Beer Hawk under or in connection with an Order, Beer Hawk may: (a) charge the Customer: (i) interest on the overdue amount at the rate of 8% per year above the UK base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment, be compounded quarterly and be payable on demand), or (ii) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998; and/or (b) withdraw any or all credit terms made available by Beer Hawk to the Customer, and/or (c) notify credit reference agencies of the failure to pay; and/or (d) withhold any or all consignments of Products due to be supplied under that or any other Order.
All of the parties’ warranties and representations in respect of the subject matter of each Order are expressly contained in these Terms. Subject to Clause 11.1 and to the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of an Order will be implied into that Order.
11.1 Nothing in these Terms or any Order will: (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; or (c) limit or exclude any liability of a party in any way that is not permitted under applicable law.
11.2 The limitations and exclusions of liability set out in this Clause 11 and elsewhere in these Terms: (a) are subject to Clause 11.1; (b) govern all liabilities arising under the Order or in relation to the subject matter of the Order, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and (c) will not limit or exclude the liability of the parties under the express indemnities set out in the Order.
11.3 Beer Hawk will not be liable to the Customer in respect of any (i) loss of profits, income, revenue, use, production or anticipated savings; (ii) loss of business, contracts or commercial opportunities; (iii) loss of or damage to goodwill or reputation, (iv) loss or corruption of any data, database or software, (v) in respect of any special, indirect or consequential loss or damage; or (vi) losses arising out of a Force Majeure Event.
11.9 Beer Hawk’s aggregate liability to the Customer under an Order will not exceed the total amount paid and payable by the Customer to Beer Hawk under that Order.
Neither party will be in breach of these Terms, or otherwise liable to the other party, as a result of any delay or any non-performance of any obligation if the delay or non-performance is owing to a Force Majeure Event, provided the party affected by a Force Majeure Event promptly notifies the other party of the nature and extent of the circumstances giving rise to the Force Majeure Event and uses reasonable endeavours to mitigate the effect of the Force Majeure Event.
13.1 Each Order will come into force in accordance with Clause 3, and will continue in force until the earlier of: (a) the completion of all of the following events: (i) the delivery to or collection by the Customer of all Products under the Order; (ii) the receipt by Beer Hawk in cleared funds of all amounts due to Beer Hawk under the Order; and (iii) if Clause 5.5 applies, the end of the agreed time period for the return or collection of the Products; and (b) the termination of the Order in accordance with the provisions of Clause 13.2.
13.2 Beer Hawk may terminate any Order immediately by giving written notice to the Customer if: (a) the Customer commits any breach of any term of the Order, or fails to pay to Beer Hawk any amount due under the Order by the due date for payment; (b) the Customer commits any breach of any term of any other contract between the parties; (c) the Customer fails to accept delivery of a consignment of Products or to collect a consignment of Products on the date agreed in the relevant Order; (d) the Customer is subject to commencement of, or any application, order, resolution or appointment being made for a distress, execution, composition, or arrangement with creditors, insolvency proceedings, winding up, dissolution, administration, liquidation, receivership (administrative or otherwise), bankruptcy, the suspension of payments, any form of seizure not lifted within two months, a moratorium of indebtedness, or any similar proceedings in any jurisdiction; (e) (where the Customer is a company) the Customer is the subject of a change in the beneficial ownership of more than 50% of the issued share capital of a company or the legal or de facto power to direct or cause the direction of the general management of a company; (f) (where the Customer is an individual) the Customer dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs; or (g) any Force Majeure Event prevails for a continuous period of more than one month.
14.1 On termination of the Contract for any reason the Customer shall immediately pay to Beer Hawk all of Beer Hawk’s outstanding unpaid invoices and interest and any other amounts owed by the Customer to Beer Hawk (on any account whatsoever).
14.2 Upon termination of an Order, all the provisions of that Order will cease to have effect, save that the following provisions of these Terms will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 5, 6, 7, 8, 9.7, 11, 14 and 16.
14.3 Termination of an Order will not affect either party’s accrued rights (including accrued rights to be paid and accrued rights to a remedy for breach of condition or warranty) as at the date of termination.
15.1 Any notice given under these Terms or in relation to an Order must be in writing (whether or not described as a “written notice” in these Terms) and must be delivered personally, delivered by courier or sent by recorded signed for post, for the attention of the relevant person and to the relevant address given below (or as notified by one party to the other in accordance with this Clause 15). Beer Hawk: Chris France, Beer Hawk Limited, Unit 16, Thorp Arch Ind. Est., Wetherby, LS23 7FA. The Customer: The addressee and address set out in the Account Opening Form.
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below): (a) where the notice is delivered personally or by courier, at the time of delivery; and (b) where the notice is sent by recorded signed-for post, 48 hours after posting.
16.1 Assignment: Beer Hawk may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations without the prior written consent of Beer Hawk.
16.2 Severability: If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Terms.
16.3 Waiver: A waiver of any right or remedy under the contract or law is only effective if given in writing by a director of Beer Hawk and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.4 Misrepresentation: (a) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into an Order; and (b) neither party will have any liability other than pursuant to the express terms of an Order.
16.5 Third party rights: A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.6 Variation: Beer Hawk shall have the right to amend these Terms from time to time. Changes to these Terms shall be effective from the moment in time at which they are published on the Website. No variation of these Terms by the Customer, including the introduction of any additional terms of business, shall be effective unless it is in writing and signed by a director of Beer Hawk.
16.7 Governing law and jurisdiction: These Terms and any dispute or claim arising out of or in connection with them shall be governed by and construed in all respects in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts in relation to any claim or matter arising from this Agreement.