Terms & Conditions
The Conditions shall govern any contract (“Contract”) Ooberstock Limited, a company registered in England and Wales with company number 07302362, whose registered office is at 9 Queen’s Square, Ascot Business Park, Ascot, SL5 9FE, United Kingdom, (the “Company”) and the customer (the “Customer”) for the ordering and supply of the products (the “Products”). The Company is registered with AWRS URN XGAW00000101812, Excise Number GBOG109366100 and is VAT registered in the U.K. under VAT Number GB 109 3661 18.
These Conditions shall prevail over any other terms unless the Company and the Customer expressly agree otherwise in writing. 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 Customer 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.
1. ORDERS, PRICES AND AVAILABILITY
1.1. Products may be ordered by a Customer via the Company’s website, e-mail or telephone to an authorised representative of the Company (an “Order”).
1.2. An Order may be rejected if it does not fulfill the Company’s minimum Order value requirement of 150 cases or one pallet, whichever is the lower number of cases. The Company reserves the right to change the minimum Order value.
1.3. All prices quoted by the Company are exclusive of VAT and subject to alteration by the Company without notice at any time prior to acceptance of the Customer’s purchase order by the Company.
1.4. Where applicable, duty and taxes will be charged to the Customer at rates prevailing at the time of dispatch of the Products.
1.5. The fulfillment of Orders will be subject to availability and, in the case of demand exceeding supply, the Company may allocate Products between its customers in its absolute discretion.
1.6. In the event that the Customer has placed an Order for a Product of a specified vintage and sufficient quantities of the Product of such vintage are not available to satisfy the Order, the Company reserves the right either to refuse the Order or to fulfill it with a Product of a comparable vintage and to invoice the Customer the price applicable to the replacement vintage.
1.7. The Company may decline to accept an Order in the event that acceptance would either result in the Customer exceeding its agreed credit limit or the Company not receiving cleared funds for the Order according to the agreement made with the Customer.
1.8. No contractual obligation binding on the Company shall arise until the Company (a) sends written acceptance of an Order, which may be by email, or (b) dispatches the Products.
1.9. If an Order comprises more than one Product, the Company may fulfil that Order in separate instalments.
1.10. All monies payable to the Company by the Customer shall be paid without any deduction, set-off or counter-claim whatsoever.
2.1. Any dates quoted by the Company for delivery are approximate. Where no date is quoted for delivery, delivery will take place within a reasonable time of the Company’s acceptance of the Order. Time for delivery shall not be of the essence. Delivery shall be made by the Company to an address specified by the Customer and agreed by the Company or, in the absence of an address so specified and agreed, either at the Company’s premises as communicated to the Customer in writing or to such address for the Customer as the Company in its absolute discretion shall consider appropriate following written confirmation to the Customer of this address for delivery. The Company shall not be responsible for any loss or damage howsoever caused by delivery in compliance with this clause, including, but not limited to, loss or damage of whatsoever nature caused by or arising from late or delayed delivery.
2.2. Products are not supplied on a sale or return basis and therefore cannot be returned once delivery has been effected.
2.3. The Customer shall return any pallets or other containers (including kegs and casks) to the Company or its appointed carrier in accordance with the Company’s reasonable instructions. The Company reserves the right to charge an administration fee for any pallets or other containers retained by the Customer for a period of more than 4 weeks from the date of delivery. Such charges will be levied by the Company at a rate of £10.00 per pallet or £70.00 per container, such sum being a genuine pre-estimate of the Company’s loss in relation to the retention of pallets or containers (as applicable).
3. RISK AND TITLE TO THE PRODUCTS
3.1. Risk in the Products passes to the Customer on delivery to the Customer’s specified delivery address.
3.2. Title in the Products shall not pass to the Customer until the Company has received payment in full of all sums owed to it by the Customer in cleared funds whether due or not (a) in respect of the Products, (b) in respect of any other Products or services supplied by the Company to the Customer, and (c) which are otherwise owed to the Company by the Customer.
3.3. Until title passes to the Customer, the Customer will (a) hold the Products as the Company’s agent, (b) store the Products in a manner which ensures clear identification of the Products as belonging to the Company; and (c) maintain the Products 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 Customer shall provide evidence of such insurance upon request from the Company.
3.4. The Customer may resell the Products before title has passed to it, but on the strict condition that any sale shall be effected in the ordinary course of the Customer’s business at full market value and that any such sale shall be a sale of the Company’s property on the Company’s behalf.
3.5. The Customer agrees that prior to the payment for the Products in the possession of the Customer, the Company shall be entitled to enter any premises where the Products may be and recover possession of them in the event of the Customer ceasing trading or undergoing (or threatening to undergo) any form of insolvency process.
4. COMPLIANCE WITH ORDER AND CLAIMS
4.1. Upon delivery of the Products, it is the Customer’s obligation immediately to examine the condition of the Products and to confirm whether the quantity and description matches the number on the delivery note. In case of any differences in quantity or description of Products, missing Products or physically damaged Products, the Company will not be liable to the Customer unless the Customer has noted any and all such differences, missing Products 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 Products must be retained by the Customer for inspection within 4-weeks by the Company.
4.2. The Company warrants that the Products 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 4.2, all other warranties (whether express or implied) are excluded to the fullest extent permissible by law.
4.3. Where the Company is satisfied that a claim relating to the matters set out at clauses 4.1 and 4.2 is correct, the Company shall (at its sole option) either replace the Products in question or refund any sums paid by the Customer in respect of the Products in question but the Company shall, subject to clause 4.4, have no further liability (whether in contract, tort, negligence or otherwise) to the Customer in respect of the same.
4.4. 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.
4.5. Subject to clause 4.4, the Company shall have no liability under the Conditions (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. The Company will in no circumstances be responsible for any loss or damage suffered or incurred by the Customer which is caused by or is otherwise attributable to the act or omission of a third party.
4.6. 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 Conditions (a “Default”) shall not exceed the total sums paid by the Customer to the Company in respect of the Products to which the Default relates.
5. FORCE MAJEURE
5.1. 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, or government intervention. The Company shall be under no obligation to notify the Customer of the occurrence of the force majeure circumstances.
5.2. 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 Order shall be cancelled.
5.3. If the circumstances giving rise to force majeure continue for six months, then either the Company or the Customer can cancel the Order without liability to the other.
6. CREDIT APPLICATIONS
6.1. The Company will endeavour to provide the Customer with a credit account and may work with a third party supplier who is FCA-authorised in order to do so. For the credit account application process the third party supplier will share the Customer’s information with a credit reference agency or agencies (CRA(s)) to verify the Customer’s identity and suitability for credit. The third party supplier will check the details of the director, partner, member or proprietor that signs the agreement on behalf of the Customer. The CRA will record details of the search performed. As the third party supplier performs a quotation search, the footprint on the Customer’s credit file will be visible to the Customer, to the CRA and to the third party supplier, but to no other lender. The CRA supply the third party supplier with public information and shared credit and fraud prevention information and information on all applications sent to CRA(s) and recorded by them. The third party supplier reserve the right to credit search the Customer further, at their discretion, over a period of twelve months from the date of the initial credit search. When a credit account is provided, details of the credit account and how it is managed will be given to CRA(s).
7.1. Payment for the Products is due prior to dispatch, 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 cancel the Order without prejudice to its right to collect all money outstanding from the Customer.
7.2. If payment for the Products is not made by the due date, then all monies due to the Company in respect of the sale of other Products whenever sold by the Company to the Customer 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 Products any payment made by the Customer in respect of any other contract made between the Company and the Customer.
7.3. Without prejudice to its other rights and remedies, interest at the rate of 3% above the Bank of England base rate shall be paid by the Customer on any and all sums due but unpaid commencing on the day immediately following the due date.
8. CONFIDENTIALITY AND SUB-CONTRACTING
8.1. The Customer shall keep strictly confidential all information concerning the Company’s business and affairs (including pricing) obtained pursuant to the Conditions or prior to and in contemplation of placing an Order.
8.2. The Company shall be entitled to sub-contract all or any part of its obligations under these Conditions (and in connection with the fulfillment of an Order) to any third party.
9.1. If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Conditions 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 notified 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 by post as soon as reasonably possible after such transmission.
9.3. The parties do not intend that any terms of the Conditions will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
10. APPLICABLE LAW; WAIVER
10.1. The Conditions shall in all respects be governed by, and construed in accordance with, English law and shall be subject to the non- exclusive jurisdiction of the English courts.
10.2. Any waiver by either party of any breach of, or any default under, any provision of the Conditions by the other will not be deemed a waiver of any subsequent breach or default and will in no way affect the enforceability of other terms of the Conditions.