1. DEFINITIONS

(a)       “The Company” means Pol Roger Limited.

(b)       “The Purchaser” means the person persons firm or company entering into or purporting to enter into a Contract with the Company.

(c)        “The Product” means any product supplied or to be supplied of whatever nature by the Company to the Purchaser under this Agreement.

(d)       “Terms” means the Terms set out in this document and any special Terms agreed in writing between the Company and the Purchaser.

(e)       “Delivery” means the completion of transporting of the Product by the Company or its agents to the entrance premises specified by the Purchaser in the Purchaser’s order prior to the commencement of off-loading of the Product.

(f)        “Collection” means the loading of the Product at the cellars of the Company’s principals or any other specified collection point.

(g)       “Insolvent” means the Purchaser becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 the levying or threat of execution or distress on a property of the Purchaser the appointment of a Receiver or Administrative Receiver over all or any part of the Purchaser’s property a proposal for a Voluntary Arrangement or Compromise between the Purchaser and its creditors whether pursuant to the Insolvency Act 1986 or otherwise the passing of a resolution for Voluntary Winding-up or summoning a meeting to pass such a resolution otherwise than for the purpose of a bona fide amalgamation or reconstruction the presentation of a Petition for the Winding-up of the Purchaser or an Administration Order in relation to the Purchaser the Purchaser ceasing or threatening to cease to carry on its business.

  1. ORDERS

2.1       Save where the Purchaser has entered into a prior written agreement with the Company all orders are accepted by the Company only under these Terms which may not be altered without the written agreement of a Director or the Secretary of the Company.  Any contrary or additional terms unless so agreed are excluded.

2.2       The Company reserves the right to make any changes in the specification of the Product which are required to conform with any applicable statutory or European Union Law requirements.

2.3       No cancellation or variation of any Contract is permitted without the agreement of the Company and on terms that the Purchaser shall indemnify the Company against all loss (including loss of profit) and costs incurred by the Company.  Product returned by the Purchaser without the Company’s consent will not be accepted for credit.

2.4       The minimum order which the Company will accept is the equivalent of one full case of 12 standard bottles of the Product.

2.5       The Company will only accept orders from the Purchaser on the basis of these Terms of Sale.  Any Terms which the Purchaser may purport to impose shall form no part of the contract between the Company and the Purchaser.

2.6       If you are an existing credit account Purchaser and intend being a company to alter your constitution or being a sole trader or partnership to become incorporated or amalgamated with others you will give prior written notice to us of the intended change if you wish to continue credit account facilities following the intended change.  Continuation of trading after the change shall be at our discretion and only deemed undertaken by us if a written acknowledgement is issued by one of our Directors or the Company Secretary.  You agree that we may obtain retain and provide to third parties references as to your financial standing.

  1. PRICE

3.1       The price of the Product shall be the Company’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Company’s published price list current at the date of acceptance of the order.  All prices quoted are valid for 30 days only or until earlier acceptance by the Purchaser after which time the Company may alter them without giving notice to the Purchaser.  The prices quoted in the Company’s price list from time to time are subject to alteration without notice.

3.2       The cost of delivery to the Purchaser’s premises in Mainland U.K. is included in the quoted prices excepting Ex-Cellars sales where all charges are to the Purchaser’s account unless otherwise negotiated and agreed with the Company.

3.3       The Company shall be entitled to adjust the price charged for any Product without prior notice to the Purchaser to reflect any increase in cost to the Company resulting from rise in cost of Product to the Company including but not limited to currency fluctuations currency regulations alteration in taxes duties or levies or conformity with any Acts Orders Regulations or Bye-Laws applicable to such Product.

3.4       Unless otherwise stated on the Company’s invoice the price of the Product shall mean and include (where applicable) the Company’s costs of standard packing and delivery of Product to the address specified in writing or by telephone by the Purchaser to the Company on or with the order.  The costs of any special packing and of all other transport requested by the Purchaser shall be for the account of the Purchaser and the Purchaser must make its own special insurance arrangements.

3.5       Prices are exclusive of Value Added Tax which will be added where applicable at the rate then current.

  1. SAMPLES

Other than by express agreement with the Company all samples priced in excess of £6.00 per bottle (excluding Value Added Tax) will be invoiced at the one case rate.

  1. RESALE

The Purchaser may resell the Product only in or from the bottles in which it is supplied by the Company and the Purchaser shall not alter the labeling or other packaging of the Product itself in any way.

  1. PAYMENT

6.1       The Purchaser shall make payment in full when placing an order for the Product unless credit facilities have been agreed between the Purchaser and the Company. Payment must be received within 30 (thirty) days of the issue date of the Company’s invoice, unless otherwise previously agreed.

6.2       If the Purchaser fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company the Company shall be entitled to

6.2.1.   cancel the Contract or suspend any further deliveries to the Purchaser or suspend the performance of any further contract being undertaken for the Purchaser

6.2.2    appropriate any payment made by the Purchaser to such of the Product (or the Product supplied under any other Contract between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser)

6.2.3    charge the Purchaser interest both before and after any Judgment on the amount unpaid at the rate of 2% per month from the date payment became due until actual payment is made

6.2.4    retain as security against payment all or any Product belonging to the Purchaser that shall at that time be in the Company’s possession

6.2.5    sell such security in the event that the Purchaser fails to make payment of the amount owing to the Company (together with any amount due for interest pursuant to Clause 6.2.3 above) subject only to the Company using its best endeavours to obtain the best available price therefor

6.2.6   at its discretion impose a reasonable storage charge to the Purchaser in respect of Product retained in storage and

6.2.7    in the event that the Company should instruct a third party whether a legal firm or a firm of debt collection agents to recover an outstanding account from the Purchaser then the Company shall have the right to recover from the Purchaser such charges and fees incurred by the Company and payable to the third party

  1. RISK AND TITLE

7.1       Risk in the Product shall pass to the Purchaser upon delivery and prior to off-loading save in the case of Ex-Cellar sales when risk shall pass on collection.

7.2       The ownership of the Product shall remain with the Company until the Purchaser has paid each of

7.2.1    All sums owed by the Purchaser to the Company on whatsoever grounds

7.2.2    All sums owed by an Associate firm or Company of the Purchaser to the Company on whatsoever grounds.

7.3       Until title passes the Purchaser will hold the Product as fiduciary agent and bailee for the Company and shall keep the Product separately stored at such temperatures as are conducive and beneficial to the correct maintenance of the quality of the Product protected insured and identified as the Company’s property and the Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Product which remains the property of the Company.

7.4       The Purchaser is licensed by the Company to use or agree to sell the Product in the ordinary course of its business subject to the express condition that the proceeds of any sale or insurance proceeds received in respect of the Product are held in trust for the Company and are not mixed with other moneys or paid into an overdrawn bank account and shall at all times be identifiable as the Company’s money.

7.5       The Company may at any time revoke the power of sale and use granted to the Purchaser and recover and resell the Product in which title shall not have passed to the Purchaser.  The Company by its servants or agents shall be entitled to access the Purchaser’s premises or those to which the Purchaser has the right of access where the Product or some of it is stored or thought to be stored for the purpose of repossession at any time.

  1. DELIVERY

8.1       All delivery dates are estimates only and the Company shall not be liable for any loss costs damages or expenses suffered by the Purchaser or any other person or company howsoever arising whether directly or indirectly out of any failure to meet any estimated delivery date.

8.2       Delivery against order(s) placed for the Product shall be clearly evidenced by the return to the Company of its or its authorised carrier’s official delivery note which must be signed and dated by an employee of the Purchaser whose signature should be legibly identified in capital letters on the delivery note. Receipt by the Company or its authorised carrier of the signed delivery note signed as acknowledgement of receipt of the Product shall be absolute and irrevocable proof of delivery of the specified numbered items entered on the delivery note and no claim for shortages will be accepted or considered.

8.3       Where the Company delivers the Product to a carrier and the carrier acknowledges receipt of the Product the Company shall thereafter cease to have any further responsibility to the Purchaser for the Product and no claim for damage or shortfall shall be accepted or considered.

  1. CLAIMS

9.1       If it has been agreed that the Product is to be carried into the Purchaser’s premises then this shall be at the risk of the Purchaser and the Purchaser will indemnify the Company against any loss damage or injury that may occur.  The Product shall be examined by the Purchaser at the time of Delivery or Collection and any loss or damage to the Product must be notified on any document signed by the Purchaser.

9.2       When the Company is undertaking delivery of the Product in accordance with the Purchaser’s instructions the Company accepts no liability for loss or damage to the Product in transit unless the Purchaser

9.2.1    at the time of Delivery or Collection examines the Product

9.2.2    retains for inspection all packaging materials

9.2.3    endorses any accompanying document with details of any loss or damage and,

9.2.4    advises both the Company and any agent of the Company involved in Delivery or Collection of any claim for any loss or damage in writing within 2 (two) days of Delivery or Collection.

9.3       Non-delivery of the product must be notified to the Company in writing within 10 (ten) days of the date of the invoice.

9.4.1    Any claim by the Purchaser which is based on any defect in the quality or condition of the Product shall (whether or not delivery is refused by the Purchaser) be notified to the Company in writing within 28 (twenty-eight) days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. Lot number(s) of the containers must be provided. If delivery is not refused and the Purchaser does not notify the Company accordingly the Purchaser shall not be entitled to reject the Product and the Company shall have no liability for such defect or failure and the Purchaser shall be bound to pay the price as if the Product had been delivered in accordance with the Contract.

9.4.2    Any claim by the Purchaser under Clause 9.4.1 above shall be subject to the Product having been separately stored and at such temperatures as are conducive and beneficial to the correct maintenance of the quality of the Product.

9.5       The Purchaser is under a duty to inspect the Product on delivery and raise any query as to pricing of the Product and unless the Company receives notice in writing within 3 (three) days of such delivery and receipt of invoice of a claim for short delivery or that the Product do not conform with the Contract or that there is a query as to the price of the Product they will be deemed to have been accepted and delivered and priced in the quantities shown in the delivery document and invoice.  The Company’s liability for short delivery is limited to making good the shortage or at its discretion crediting part of the purchase price.

  1. WARRANTY

The Product is guaranteed when delivered or collected to be of the type and quality described in the Company’s price list.  The Company will also endeavour to ensure that the Product complies with all relevant statutory requirements and regulations relating to the sale of the Product.  The Company accepts no responsibility for any defects or damage caused to the Product or the packaging of the Product after Delivery or Collection.

  1. PERFORMANCE

11.1     Delivery dates for the supply of Product are given in good faith but are estimates only and no liability will be accepted for any delay in delivery of the Product howsoever caused.

11.2     The Company may suspend or cancel the whole or any part of the Contract if by reason of circumstances beyond its control including (but without limitation to the foregoing) strike lockout labour dispute damage to or loss or failure of machinery insufficient supply of electricity gas oil or water fire flood government intervention export restriction confiscation mobilisation war blockage Act of God adverse weather and a shortage of carriage or shipping facilities the Company is prevented or hindered in or from performing its obligations or performance of those obligations is to a substantial degree rendered difficult.  If the Company exercises its right of suspension the Purchaser may within 7 (seven) days cancel any remaining part of the Contract upon payment of all or any expenses incurred by the Company to date together with its proper and reasonable charges for product supplied up to and including the date of exercise of its right of suspension.  The Company shall have no liability for any such suspension and on any such cancellation whether by the Company or by the Purchaser the liability of the Company (if any) is limited to repayment of any part of the price received less the proper and reasonable charges and expenses already incurred by the Company.

11.3     The Company will be entitled to make an additional charge if

11.3.1  the Purchaser fails to take delivery of the Product ordered or

11.3.2  the Company in its sole discretion agrees to accept the return of the Product.

  1. THIRD PARTY LIABILITY

The Company shall be under no liability in respect of any damage or loss to third parties caused directly or indirectly by the Product and the Purchaser shall at any time indemnify the Company against any such loss or damage.

  1. SUSPENSION AND TERMINATION

13.1     The Company will be entitled without prejudice to any other right or remedy available accruing or already accrued by notice in writing to the Purchaser forthwith (save as herein provided) to suspend or terminate this agreement if at any time

13.1.1  the Purchaser shall exceed any credit limit or breach any credit terms imposed by the Company

13.1.2  there shall be any serious or continuing breach or series of breaches of this agreement by the Purchaser

13.1.3  the Purchaser becomes insolvent as defined by the definition of “insolvent” in Clause 1 (g) above.

13.1.4  an encumbrancer takes possession or a Receiver is appointed of any or any part of the property or assets of the Purchaser

13.1.5  the Purchaser ceases or threatens to cease to carry on business

13.1.6  in the event that there is a material change in the constitution of the Company.

13.1.7  in the event of any of the foregoing occurring the Company shall be entitled to cancel the Contract or to suspend further performance of the Contract or any Contract in force between the Company and the Purchaser without liability to the Purchaser for such a time as the Company shall deem fit and for this purpose stop delivery of any Product in transit to the Purchaser unless and until in the case of sub-clauses 13.1.1 and 13.1.2 only the event or events giving rise to the suspension or termination be remedied on terms satisfactory to the Company or

13.1.8  in the event of termination then such termination will be without prejudice to the Purchaser’s obligations and the Company’s rights under the Contract and any loss that may be sustained by the Company by reason of such suspension or termination howsoever the same shall arise.

  1. DATA PROTECTION

14.1     The Company’s data controller is Pol Roger Limited of Shelton House 4 Coningsby Street Hereford HR1 2DY.

14.2     Pursuant to data protection legislation the Purchaser can request the Company in writing for a copy of certain personal records the Company holds concerning the Purchaser.  This does not apply to companies or any other corporate bodies.

14.3        When opening accounts for a Purchaser, the Company makes certain enquiries in order to protect itself. Those enquires embrace obtaining information from banks and/or licensed credit reference agencies to assist in preventing fraud.

14.4     The Company reserves the right to inform credit reference agencies of details of any non-payment where the Company makes demand but receives no satisfactory proposal for repayment.

14.5     The Company will not disclose information about the Purchaser’s account to any third party without the Purchaser’s permission unless

14.5.1  the Company is legally compelled or it is in the public interest to do so

14.5.2  it is in the Company’s interest to do so in order to recover loss or prevent loss or

14.5.3  the Company receives a bank reference concerning the Purchaser’s creditworthiness from outside the United Kingdom (the Company will require the written consent of the Purchaser to reply to such requests from within the United Kingdom)

14.6     The Company will put onto its database information about the Purchaser and the conduct of its account which will be used by the Company.

  1. MISCELLANEOUS

15.1     Any notices to the Company should be addressed to Shelton House 4 Coningsby Street Hereford HR1 2DY and any notices to the Purchaser should be addressed to its last known trading address.

15.2     The waiver by the Company of any breach or default of these Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.

15.3     If any Clause or sub-clause of these Terms is held by a competent authority to be invalid or unenforceable the validity of other Clauses and sub-clauses of these Terms will not be affected and they shall remain in full force and effect.

15.4     The headings for these Terms are for convenience only and shall have no effect upon interpretation.

  1. GOVERNING LAW

This Contract shall be construed and governed in all respects by English law and all disputes arising under or relating to the Contract shall be the subject of the jurisdiction of the Courts in England to which the Purchaser and the Company hereby submit and/or such other jurisdiction as the Company nominates in its sole discretion.  The Company and the Purchaser expressly agree to exclude from these Terms and Conditions of Sale the United Nations Convention on Contracts for the International Sale of Services 1980 and any successor thereto.

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