AFFINTY DRINKS, SL, (" The Company") and the customer ("Buyer") for requests and offers of goods ( "Products" ) .
The legal relationship between the parties is governed by this single contract. This contract is the only valid between the parties and supersedes any previous agreement or commitment on the same object, whether written or verbal.
Equally, this may only be amended by the signed agreement of both parties. These Conditions shall apply to all of the Company’s sales and no variation of these Conditions shall have effect unless expressly agreed in writing and signed by a director of the Company. The Purchaser acknowledges that it has not relied on any statement, promise or representation made or given by, or on behalf of, the Company, which is not set out in the Conditions or in writing and expressly confirmed by the Company. These Conditions do not constitute an offer for sale.
1 PRICES AND AVAILABILITY
1.1. All prices quoted by the Company do not include VAT and are subject to change by the Company without notice at any time before acceptance of the Purchaser’s purchase order by the Company..
1.2. Where applicable, duty and taxes will be charged at rates prevailing at the time of dispatch.
1.3. The fulfillment of orders will be subject to availability and, in the case of demand exceeding supply, the Company may allocate goods among its customers in its sole discretion.
1.4. In the event that the Purchaser has placed an order for a product of a specified vintage and sufficient quantities of the product of such vintage are not obtainable to fulfil the order, the Company reserves the right to cancel the order or
provide an equivalent vintage and to invoice the Purchaser the price applicable to the replacement vintage.
1.5. The Company may refuse to accept an order if the acceptance may result in the Purchaser exceeding its ageed credit limit or the Company receiving the funds for the order
according to the agreement made with the Purchaser.
1.6. Binding contractual obligation will not be created until the Company sends written acceptance of an order, which may be per email, or on dispatch of the goods.
2.1. Any dates cited by the Company for the delivery of the goods are approximate. When no dated is named, the delivery will take place within a reasonable time from the date of acceptance of the order. Delivery will be made by the
Company to an address specified by the Purchaser and agreed to by the Company or, in the absence of an address, either at the Company’s premises as communicated to the Purchaser in writing or to such address for the Purchaser as
the Company in its absolute discretion shall consider appropriate following written confirmation to the Purchaser of this address for delivery. The Company shall not be liable for any loss or damage caused by delivery in compliance with
this clause, including, but not limited to, loss or damage of any nature caused or arising from late or delayed delivery.
3 RISK AND OWNERSHIP OF GOODS
3.1. Risk in the Goods passes to the Purchaser, (a) on delivery to an agreed warehouse, where goods are sold Delivered Duty Unpaid (DDU) or Delivered Duty Paid (DDP), or (b) on collection or receipt of the warehouse transfer notice,
where the goods are sold Ex-Works (EXW), or (c) when goods are placed on the ship, where goods are sold Free on Board (FOB), or (d) on delivery to an agreed port, where the goods are sold Cost, Insurance, Freight (CIF).
3.2. Ownership of the goods shall not pass to Purchaser until the Company has received full payment of all sums owed by the Purchaser for the full amount (a) with regard to the Goods, (b) with respect to any other goods or services provided by the Company to the Purchaser, and (c) that otherwise owed to the Company by the Purchaser.
3.3. Until ownership passes to the Purchaser, the Purchaser will (a) maintain the Goods as agent of the Company, (b) store the products in a way that ensures clear identification of the property as belonging to the Company; and (c) maintain the Goods in a satisfactory condition and insured on the Company’s behalf for their full price against all risks, including but not limited to theft and destruction by whatever cause, to the reasonable satisfaction of the Company.
The Purchaser shall provide evidence of such insurance upon request from the Company.
3.4. The Purchaser may resell the goods before ownership has passed to it with the only condition that the sale shall be conducted in the ordinary course of business of the Purchaser in its full market value and that any such sale shall be a sale of the Company’s property on the Company’s behalf.
3.5. Buyer agrees that before payment of the goods in the possession of the purchaser, the Company shall be entitled to enter any premises where the goods are located and repossess them in the event of The Purchaser ceasing trading or the appointment of Administrators to the Purchasers business.
4. SALE OR RETURN
4.1. Goods are not supplied on a sale or return basis and therefore cannot be returned once delivery has been effected.
5. COMPLIANCE WITH ORDER AND CLAIMS
5.1. Upon delivery of the Goods, it is the Purchaser’s obligation immediately to examine whether the quantity matches the number on the delivery note and the condition of the Goods. In case of any differences in description of Goods, missing Goods or physically damaged Goods, the Company will not be liable to the Purchaser unless the Purchaser has noted any and all such differences,missing Goods or damage on the delivery note or recorded them in specific detail in an email to the Company within 48 hours of delivery. Any and all physically damaged Goods must be retained by the Purchaser for inspection within 4-weeks by the Company.
5.2. Claims relating to any matters referred to in Clause 651 are to be made in writing to the Company no later than 7 days starting on the day after delivery of the Goods.
5.3. The Company warrants that the Goods will be of satisfactory quality at the date of delivery and shall comply in all material respects with any written specification supplied by the Company.Save as set out in this clause 5.3, all other warranties (whether express or implied) are excluded to the fullest extent permissible by law (provided that this exclusion shall not apply if the Purchaser is purchasing outside the course of his business or trade).
5.4. In the event that the Purchaser subsequently makes a claim in relation to the quality of the content of the Goods, or in relation to the warranty given in clause issue.
5.5. Where the Company is satisfied that the claims relating to the matters set out at clauses 5.1 and 5.4 are correct, the Company shall (at its sole option) either replace the Goods in question or refund any sums paid by the Purchaser in respect of the Goods in question but the Company shall, subject to clause 5.6, have no further liability (whether in contract, tort, negligence or otherwise) to the Purchaser in respect of the same.
5.6. The Company does not limit or exclude it’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation.
5.7. Subject to clause 5.6, the Company shall have no liability under the Contract (whether in contract, tort, negligence, breach of statutory duty or otherwise) for any indirect, consequential or special loss (including, without limitation, loss of business, loss of goodwill and loss of reputation) or loss of profits.
5.8. Except for the type of liability referred to at clause 5.6 and liability for defective products under the Consumer Protection Act 1987, the Company’s total liability in respect of any contractual breach or representation, statement or tortious act or omission (including, without limitation, negligence) arising under or in connection with the Contract (a “Default”) shall not exceed the total sums paid or payable by the Purchaser to the Company in respect of the quantities of Goods to which the Default relates.
6. FORCE MAJEURE
6.1. Force majeure shall include all events beyond the Company’s reasonable control, including without limitation, fire, war, riots, civil disturbances, local or national strike, missing, deficient or delayed delivery from sub-suppliers, lack of labour and/or fuel, restriction of trade or currency, government intervention, etc. The Company shall be under no obligation to notify the Purchaser of the occurrence of the force majeure circumstances.
6.2. If performance of the Company’s obligations is delayed or hindered by circumstances amounting to force majeure, the Company’s duty to perform its obligations shall be suspended for as long as those circumstances continue and the time for such performance shall be extended accordingly. If performance of the Company’s obligations becomes uneconomic or impossible due to circumstances amounting to force majeure, the Contract shall be cancelled and the company and the Purchaser returned as closely as may be reasonably achieved to the positions in which they were before the Contract.
6.3. If the circumstances giving rise to force majeure continue for of six months, then either the Company or the Purchaser can terminate the Contract without liability to the other.
7.1. Payment for the Goods is due prior to despatch, unless otherwise agreed. Without prejudice to its other rights and remedies the Company reserves the right to withhold supplies and to suspend any further deliveries in the event that payment is overdue. In the event that payment remains outstanding, the Company may, without prejudice to its other rights and remedies, cancel the order without prejudice to its right to collect all money outstanding from the Purchaser.
7.2. If payment is not made by the due date, then all monies due to the Company in respect of the sale of other goods whenever sold by the company to the Purchaser shall become immediately due and payable. If payment is not made by the due date, the Company may, without prejudice to its other rights and remedies, appropriate to the Goods any payment made by the Purchaser in respect of any other contract made between the Company and the Purchaser.
7.3. Without prejudice to its other rights and remedies, interest at the rate of 2% above the Bank of England base rate shall be paid by the Purchaser on any and all sums due but unpaid commencing on the day immediately following the due date.
8.1. Each party to the Contract shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to the Contract or prior to and in contemplation of it, shall use the same exclusively for the purpose of the Contract, and shall disclose the same only to those of its directors and employees to whom and to the extent that such disclosure is reasonably necessary for the purpose of the Contract.
8.2. The obligations of clause 8.1 above shall survive the expiry or termination of the Contract but shall not apply to any information which, (a) the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 8.1 above, (b) is subsequently disclosed to the recipient without any obligation of confi dence by a third party who derived it directly or indirectly from the disclosing party, (c) enters the public domain through no act or default of the recipient, its agents or employees; or (d) is required by law to be disclosed.
9.1. If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
9.2. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notifi ed pursuant to this provision to the party giving the notice. If such written notice is given by facsimile transmission, a copy of that notice must be sent as soon by post as is reasonably possible after such transmission.
10. APPLICABLE LAW AND VALIDITY; WAIVER
10.1. The contract shall in all respects be governed by, and construed in accordance with Spanish law and shall be subject to the non-exclusive jurisdiction of the Spanish courts. Any provision hereof which is void or unenforceable under any applicable law shall be deemed severed rom the Contract to the extent of such invalidity or unenforceability and shall not affect the enforceability of any other provision of the Contract.
10.2. Any waiver by either party of any breach of, or any default under, any provision of the Contract by the other will not be deemed a waiver of any subsequent breach or default and will n no way affect the enforceability of other terms of the Contract.