On-Trade: Changes To Terms And Conditions of Sale

On 1 March 2013, we are changing our On-Trade Terms and Conditions of Sale (the On-Trade Terms).  The main changes we are making are summarised below. All references are, unless otherwise indicated, references to clauses in the new On-Trade Terms.
 

1. Definition. We have changed “Seller” to “Carlsberg” and “Purchaser” to “Customer” for clarity.
2. Orders. We have introduced a number of new provisions to govern the process by which customers may order Products.  We may now specify minimum order quantities (Clause 3.1).  Clause 3.2 requires that any order has to be placed by a person that is at least 18 years old.  We may now reject an order for any reason (Clause 3.3), but, once an order is accepted, the customer cannot cancel, suspend or defer it (Clause 3.5).  Any quotation that we provide is not a formal offer and may be withdrawn by us at any time (Clause 4.3). 
3. Prices and invoicing.  Any discount from our list price that we offer to a customer applies to Products that are ultimately supplied by us to the premises that customer owns, manages or operates (Premises). The price to the customer of any Product that is supplied by the customer to any third party or location other than Premises (Other Purchasers) will be our list price published on the date (or deemed date) of delivery. The customer has to provide us with a report upon request setting out the volume of the Products resold or supplied by the customer and the number of stockists to whom it was resold / supplied, broken down by supplies to Premises and Other Purchasers (Clause 4.2).   Clause 4.4 now clarifies that all costs in relation to transport and insurance will be payable by the customer.   We may now invoice the customer at any time after delivery takes place (Clause 4.5).
4. Payment.  All payments must be made by the customer, in pounds sterling, by direct debit and within four weeks of delivery, unless other payment terms have been agreed (Clause 5.1).  Failure to make a payment may result in future deliveries not being made.   Where the due date is not a business day, we reserve the right to collect a direct debit payment on the immediately preceding business day (Clause 5.2).  We may now set-off any amounts due to us against any amounts we may owe to a customer (Clause 5.3).  We are entitled to recover any bank or other charges incurred by us as a result of late payment by a customer or in recovering any sums due but not paid under the contract, including in respect of cheques, direct debits and the like which are returned or not met either at first or at all (Clause 5.7).
5. Credit. A new provision states that if you have credit insurance in place, you must not do anything to jeopardise such insurance and must provide details of it to us (Clause 5.5).  We may refuse to supply Products to you, or require you to pay in cash, where you have exceeded any credit limit extended to you or have failed to make full payment by the relevant date.  Any credit limit may be revised by us in our sole discretion (Clause 5.6).
6. Interest.  Any interest on late payments will now be at the rate specified by the Late Payment of Commercial Debts (Interest) Act 1998.
7. Delivery.  We have introduced a number of new provisions regarding delivery.  Delivery dates and times are estimates only (Clause 6.2). We may refuse to deliver if the location to which the Products are being delivered is not safe (Clause 6.1).  Upon delivery, we can require the customer to sign an acknowledgement of receipt to prove that delivery has taken place (such as a delivery note or handheld terminal), which may include signature by electronic means (Clause 6.3).  Also, if a customer now fails to accept a delivery, we may now store the Products at its cost and risk (Clause 6.4).  If the quantity we deliver to a customer is up to five per cent more or less than the amount ordered, it must accept the Products and pay the pro-rata price for them (Clause 6.5).  Products can now be delivered and invoiced in instalments (Clause 6.6).  Finally, we do not accept any liability for damage to property (other than to the Products) that is caused by a delivery, unless the customer notifies us of such damage within 24 hours (Clause 6.7).
8. Title and risk. Where delivery is effected by a third party, risk will pass when the Products are handed over to the relevant carrier (Clause 7.1). If we reasonably believe that a customer’s business is in financial difficulties, we may insist that it returns the Products to us (Clause 7.4).
9. Containers and gas cylinders.  We have added further provisions relating to containers including imposing an obligation on customers to comply with CHEP pallet industry standards and BBPA’s Container Management Best Practice guidelines (Clause 8.8). The new terms highlight the risk associated with tampering with certain types of container.   The terms also now deal with gas cylinders.  Any gas cylinders will be charged for on a monthly basis at the daily rate per cylinder notified to the customer (Clause 9.1).  Invoices will be sent on a monthly basis and any discrepancies must be notified to us within 7 days of the date of the invoice otherwise the sums charged will be deemed to have been accepted by the customer. Any requests for credit need to be supported by proof that gas cylinders were returned and that there has been an error on our part. Proof would be signed delivery notes showing returns that are not reflected in the invoice (Clause 9.2).
10. Storage, handling and quality. Clause 10 now sets out our obligation to ensure that the Products are of satisfactory quality and fit for human consumption when delivered.  The Customer must store and onsell the Products supplied to it under the contract in accordance with all applicable generally accepted industry standards and practices, statutory and regulatory requirements, and any requirements reasonably specified by us, relating to the quality, storage, refrigeration, handling, dispense, delivery and sale of the Products (Clause 10.4).  Some specific requirements are now listed.  Defective Products must be immediately removed from sale (Clause 10.4.8).  Draught Products must be served using dispense equipment provided or approved by us and our equipment must not be used to dispense other brands (Clause 10.5). The old ullage process is now reflected in this Clause and in Clause 11.
11. Acceptance and defective products. Clause 11.1 now sets out the customer’s right to reject the Products.  Provided we replace the defective products, or offer a refund, we will have no further liability (Clause 11.4).   We will have no liability in respect of any Product unless (a) in respect of a keg or cask Product, less than 3 gallons have been dispensed from the container at the time it is collected by us (regardless of its size) and the keg extractor has not been tampered with; (b) the issue with the Product is reported to us before the expiry of the best before date applicable to that Product; (c) the Product has not been adulterated in any way; (d) the customer has complied with its obligations regarding storing, handling, dispensing etc. the Products; and (e) in respect of a keg or cask Product, the best before label and container label have not been removed or defaced in any way. If a keg or cask is delivered without a best before label or container label, the customer must immediately notify us and the keg or cask should not be broached (Clause 11.5).
12. Technical services and POS materials.  The supply, installation and maintenance of technical services, and the supply of POS materials, are each governed by a separate set of terms and conditions (Clauses 12 and 13). 
13. Limitation of liability. We have updated Clause 14 to clarify the position regarding our liability to customers, but the limit placed on our liability has not changed (Clause 14.5). We will not be liable for any indirect losses and have no liability whatsoever to any purchaser of a Product (Clause 14.6).  Customers must assist us to defend any claim brought by a third party (Clause 14.7).
14. Termination.  In addition to our existing termination rights, if we reasonably believe that a customer is in financial difficulties, we may now cancel or suspend further deliveries (Clause 15.1).
15. Business ethics.  The customer is now required to comply with certain anti-bribery laws and must indemnify us if it fails to do so (Clause 17.1).
16. Information.  By placing an order, the customer confirms that it is acting in the course of its business and requires the Products for business purposes (Clause 18) – this is money laundering point.  The customer is responsible for notifying us of all relevant account numbers relating to its orders, and of any change of address or other relevant details.  The customer must provide us with such information and assistance as we reasonably require to enable us to comply with legislation and regulations designed to combat the laundering of the proceeds of crime, and to ensure compliance we reserve the right to refuse to accept cash payments.