Generic Technical Services Charging Summary
Subject to the full terms and conditions set out below, you will NOT be charged for Generic Technical Service Equipment and Services provided to your Outlet by HEINEKEN in respect of:
• Any of HEINEKEN’s
brands;
• Keg lines relating to
brand owners who have chosen to settle centrally with HEINEKEN (set out
in TABLE A below – please note this list is subject to change
and will be updated from time to time);
• Keg lines relating to
brand owners who paid the connection fee under the previous scheme but have
chosen not to settle centrally under the new scheme (set out in TABLE B below
– please note this list is subject to change and may be updated from time to
time). However, you will be charged in the future for these lines
when:
o the python
relating to that line is replaced; OR
o you change the brand
on that dispense line to that of a brand owner that has chosen not to settle
centrally with HEINEKEN.
TABLE A – Centrally
Settled Brand Owners (lines will not be chargeable to you)
Accolade Wines
|
JW Lees
|
Adnams Southwold
|
Joseph Holt Ltd.
|
Asahi UK Ltd
|
Krombacher Brewery
|
Beavertown Brewery
|
Kingfisher Beer Europe limited
|
Bays Brewery Limited
|
Left Field Kombucha
|
Black Sheep Brewery
|
Lilleys Cider
|
Brewdog
|
LWC Drinks Ltd
|
Black Isle Brewing Company
|
Malt Coast
|
Brixton Brewery
|
Marston’s Plc
|
Budweiser Brewing Group
|
Molson Coors
|
Budweiser Budvar
|
Nightingale Cider
|
Butcombe Brewery Co
|
Otter Brewery
|
Camerons Brewery
|
Portobello Brewing Company
|
Carlsberg
|
Redwell Brewery
|
Castle Rock Brewery
|
SA Brains
|
Cave Direct
|
Sandford Orchards
|
Celtic Marches Beverages
|
Shepherd Neame
|
Cider of Sweden (Kopparberg)
|
Sheppy’s Cider
|
Cold Town Brewery
|
Sinclair Breweries Limited
|
Conwy Brewery
|
Small Beer Brew Company
|
Curious Brewery
|
St Austell Brewery
|
C&C Group
|
Stewart Brewing Company
|
Diageo
|
Snowden Craft Beer Ltd
|
Duvel Moortgat Brewer
|
Thatchers Cider
|
Edinburgh Beer Factory
|
The Purbeck Cider Co
|
Felinfoel Brewery
|
Theaktson Brewing Company
|
Frederic Robinson Ltd
|
Thistly Cross Cider
|
Fyne Ales
|
Thornbridge Brewery
|
Fourpure Brewing
|
True North Brew Co
|
Glamorgan Brewing Co
|
Wadworth
|
Gower Brewery
|
West Beer
|
Greene King / Belhaven
|
West Berkshire Brewery
|
H Weston & Sons
|
Westerham Brewery
|
Harveys
|
Wild Horse Brewing Company
|
Harviestoun Brewery
|
Williams Bros Brewing Co
|
Healey’s
|
Whitstable Brewery
|
Hunts Cider
|
Windsor & Eton Brewery
|
Hurns (Tom Watkins)
|
Winkleigh Cider Co Ltd (Sam’s Cider)
|
Hydes Brewery
|
Woodforde’s
|
Innis & Gunn
|
Wrexham Lager
|
Jubel Beer
|
|
TABLE B – Legacy
Paid-Up Brand Owners (only chargeable in accordance with Condition 7.5)
Arkell’s Brewery
|
Purity Brewing
|
Hook Norton Brewery
|
Samuel Smith’s Brewery
|
James Clay
|
Skinners
|
Rebellion Beer Company Ltd
|
Timothy Taylor
|
You will be charged
the Monthly PAYG Charges set out below from 1st May 2019 for lines in your
outlet that dispense brands owned by or licensed to a brand owner that does not
appear in Table A or B.
If you HAVE any
agreement with Heineken UK Limited relating to the supply of draught products
(either directly from us or indirectly via a distributor), these terms and
conditions are hereby deemed to form part of your contractual relationship with
us. In the event of any conflict between conditions 12 – 23
(inclusive) of these terms and conditions and the terms of your other existing
agreement(s) with us, the terms of your existing agreement(s) shall take
precedence and prevail.
If you DO NOT
HAVE an agreement with Heineken UK Limited relating to the supply of
draught products, the terms and conditions set out below shall apply to the
installation and maintenance of technical service equipment by us in your
outlet.
In either case, you
agree that these terms and conditions constitute the terms of a technical
service agreement between you and us (the “Agreement”).
If you do not confirm
acceptance of this Agreement, you shall still be deemed to agree to these terms
and conditions by continuing to make use of the technical service equipment
and/or benefit from the services.
1. Interpretation
1.1. In this Agreement:
“Branded Technical Service Equipment”
means the Technical Service Equipment supplied by us (or any subcontractor of
ours) that is intended to be installed in a consumer-facing location in an
Outlet, and features the brand logos or trademarks of any of our owned and/or
licensed products (including branded founts and lenses);
“Centrally Settled Brand Owners”
means the brand owners that have agreed to make payment directly to us for the
use of Generic Technical Services Equipment and Services in respect of their
owned or licensed brands, as set out in Table A above (as updated from time to
time);
“Chargeable Line” means each
draught keg dispense line in your Outlet that dispenses products that are not
owned or licensed by (i) us or (ii) a Centrally Settled Brand Owner;
“Charges” means the Fair Ale
Charges, the PAYG Charges and any sums payable under Condition 9.3;
“Data Protection Laws” means EU Data Protection Laws, UK Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. In the event of conflict between Eu Data Protection Laws and UK Data Protection Laws, UK Data Protection Laws shall prevail;
“EU Data Protection Laws” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and laws implementing or supplementing the GDPR;
“Fair Ale Charges” means
sums payable for the supply or maintenance (or procuring the supply or
maintenance of) Technical Service Equipment required for cask ales;
“Generic Technical Service Equipment”
means the Technical Service Equipment required to dispense draught keg products
in an Outlet, comprising the cooled lines (python), primary gas valves and the
remote cooler, but not including Branded Technical Service Equipment, founts,
T-bars or any brand owner’s line-sets;
“Heineken Group Company” means
any direct or indirect holding or subsidiary undertakings of Heineken UK
Limited or any direct or indirect subsidiary of such holding company, and other
undertakings in which Heineken UK Limited has a direct or indirect interest;
“Intellectual Property Rights”
means all copyright, patent, trade mark, trade secret, design rights, domain
names and other proprietary and intellectual property rights whether registered
or unregistered in the Technical Service Equipment and know how which we may
provide in relation to the Technical Service Equipment or Services;
“Lead Brewer” means the brand
owner with the highest number of keg dispense lines at an Outlet using the
Generic Technical Service Equipment to pour its brands;
“Legacy Paid-Up Brand Owner” has
the meaning given to it in Condition 7.5 and a list of the relevant brand
owners is set out in Table B above (as updated from time to time);
“Outlet” means the premises in
which the Technical Service Equipment is installed or intended to be installed;
“PAYG Charges” means the Pay
As You Go sums payable for the provision of Generic Technical Service Equipment
and the Services, as outlined in Condition 7;
“Products” means our
owned and/or licensed products;
“Services” means the
provision of Generic Technical Service Equipment and the maintenance services
outlined in Condition 6 by us or any subcontractor of ours;and;
“Technical Service Equipment”
means all raising, dispense, and other equipment supplied by us (or any
subcontractor of ours), including the Branded Technical Service Equipment and
Generic Technical Service Equipment but excluding any SmartDispense equipment.
“UK
Data Protection Laws” means the GDPR as transposed into UK national
law by operation of section 3 of the European Union (Withdrawal) Act 2018
and as amended by the Data Protection, Privacy and Electronic Communications
(Amendments etc.) (EU Exit) Regulations 2019 (“UK GDPR“),
together with the Data Protection Act 2018, the Data Protection, Privacy and
Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and
other data protection or privacy legislation in force from time to time in the
UK
1.2. In this Agreement:
1.2.1. “we”, “us” or “our”
refers to Heineken UK Limited or any Heineken Group Company;
1.2.2. “you” refers to the
recipient of the Technical Service Equipment and/or Services supplied by us (or
any subcontractor of ours);
1.2.3. the singular includes
the plural and vice versa;
1.2.4. any phrase introduced
by the terms “including”, “in particular” or any similar expression will be
construed as illustrative and will not limit the sense of the words preceding
those terms;
1.2.5. unless otherwise
specified, a reference to “writing” does not include email or fax;
1.2.6. any reference to
“persons” includes natural persons, firms, partnerships, companies,
corporations, associations, organisations, governments, states, governmental or
state agencies, foundations and trusts (in each case whether or not having
separate legal personality and irrespective of the jurisdiction in or under the
law of which it was incorporated or exists);
1.2.7. references to
statutes, any statutory instrument, regulation or order will be construed as a
reference to such statute, statutory instrument, regulation or order as
amended, supplemented or re-enacted from time to time; and
1.2.8. words and expressions
which are defined in the Companies Act 2006 have the same meanings as are given
to them in that Act.
1.3. This Agreement does
not apply to the installation or maintenance of any SmartDispense equipment, in
respect of which you will need to enter into a separate agreement with
us.
2. Basis of Generic Technical Service
Equipment Provision
2.1. If we are the Lead
Brewer in your Outlet, we will supply the Generic Technical
Service Equipment and the Services in your Outlet in accordance with, and
subject to, the terms of this Agreement. Notwithstanding the foregoing,
you can choose whether you wish for us to provide Generic Technical Service
Equipment and Services in your Outlet.
2.2. Without prejudice to
the terms of this Agreement, in the event that we are the Lead Brewer in your
Outlet and you no longer wish for us to provide Generic Technical Service
Equipment and Services in your Outlet, you must notify us in writing. If we
receive such notification from you, we will discuss your options with you
including, the option for you to purchase the Generic Technical Service
Equipment at a price we (or our nominated subcontractor) may agree with
you.
2.3. In the event that we
(or our nominated subcontractor) agree to sell any Generic Technical Service
Equipment to you, you must immediately arrange for any references to any of our
trade marks to be removed from the Generic Technical Service
Equipment.
3. Risk and Insurance
All Technical Service Equipment will
remain our property (or the property of other companies with whom we have
contracted, including Serviced Dispense Equipment Limited), but the Technical
Service Equipment will be at your risk while on your premises or under your
custody or control. You must insure the Technical Service Equipment
whilst it is at your risk, such insurance to be sufficient to cover all costs
required to effect replacement or repair (including labour costs), including
damage sustained to the Technical Service Equipment as a result of malicious
damage, explosion, fire or flood.
4. Cask Ales
4.1. The supply and
maintenance of the Technical Service Equipment (including cask ale handpulls,
pythons and PTCs) required for cask ales is the responsibility of the
individual cask ale brand owner and will only be provided/procured by us where
we are the brand owner or licensee of a cask ale supplied to you.
4.2. Where we supply or
maintain (or procure the supply or maintenance of) Technical Service Equipment
required for cask ales, the Fair Ale Charges will apply.
5. Installation of Technical Service Equipment
5.1. Generic Technical
Service Equipment
Subject to your compliance with this
Agreement (including making full payment of the Charges due in accordance with
Condition 7) and any other terms relating to Technical Service Equipment
in any other agreements we may have with you, where we are the Lead Brewer in
your outlet we will install and maintain the Generic Technical Service
Equipment as we may agree with you from time to time. We will not be
responsible for the provision and maintenance of any cellar cooling equipment.
5.2. Branded Technical
Service Equipment
5.2.1. Where we, our agents
or subcontractors supply Branded Technical Service Equipment, it is for the
exclusive use with the Products and must be used in accordance with our
instructions (or those of our subcontractor) and remain strictly as installed
by us or our subcontractor.
5.2.2. We may also elect to
supply or procure the supply of branded cooling equipment, to deliver extra
cold temperatures, for exclusive use by you with the Products. Such equipment
will form part of the Branded Technical Service Equipment.
5.2.3. In the event that you
use the Branded Technical Service Equipment to dispense products other than the
Products, you will be acting otherwise than in accordance with this Agreement
and we reserve the right to either:
5.2.3.1. take the steps set
out in Condition 9;
5.2.3.2. charge you for the use of the Branded Technical Service Equipment for as long as you dispense other products through it; or
5.2.3.3. sell the Branded Technical Service Equipment to you at a price which we (or our nominated subcontractor) may agree with you.
5.2.4. Where
Conditions 5.2.3.2 or 5.2.3.3 apply, you must arrange for
any references to any of our trade marks to be removed from the Branded
Technical Service Equipment prior to use in connection with products other than
the Products.
5.3. All Technical Service Equipment
5.3.1. Once installed, the
Technical Service Equipment must not be moved or tampered with.
5.3.2. We will write down
the installation cost (which includes the value of the Technical Service
Equipment itself and labour costs) of Generic Technical Service Equipment over
a period of 10 years and of Branded Technical Service Equipment over a period
of 5 years at a fixed rate following the date of installation at the relevant
Outlet.
5.3.3. We have a right to
reclaim (and you agree to pay) the unwritten down balance in full:
5.3.3.1. if you do not comply
with this Agreement;
5.3.3.2. if you do not
comply with any other terms relating to Technical Service Equipment in any
other agreements we may have with you;
5.3.3.3. if we cease to be the
Lead Brewer at the outlet and cannot recover the unwritten down balance from the
new Lead Brewer.
5.3.4. Both parties
acknowledge and agree:
5.3.4.1. that this is a
genuine pre-estimate of the loss we will suffer in connection with the
installation of the equipment as a result of your non-compliance or us being
unable to recover the unwritten down balance from the new Lead Brewer; and
5.3.4.2. this
Condition 5.3 is without prejudice to any other rights and remedies
available to us under this Agreement.
5.3.5. If you remove any of
the Products from the Branded Technical Service Equipment installed, we reserve
the right to demand repayment of the unwritten down balance in respect of that
Branded Technical Service Equipment at the relevant time in full.
5.3.6. For the avoidance of
doubt, we will not be responsible for any cosmetic or non-essential changes to
the Technical Service Equipment and we reserve the right to charge you for all
sums due in respect of such cosmetic and non-essential changes including:
5.3.6.1. changes to dispense
type e.g. fount to t-bar, t-bar to t-bar;
5.3.6.2. maintenance or
replacement connected to failure to comply with Condition 8 (Your
Responsibilities) of this Agreement;
5.3.6.3. upgrades to Technical
Service Equipment;
5.3.6.4. relocation of
Technical Service Equipment; and
5.3.6.5. refurbishment of bars
or cellars.
5.3.7. Any additional
technical service provision, for example the installation of additional service
stations, T-bars, non-standard or upgraded dispense equipment, cosmetic bar
refurbishments, non-standard temperature or speed of dispense initiatives will
need to be agreed in writing with us, and all of the costs borne by you, unless
we agree otherwise in writing.
6. Maintenance of Technical Service
Equipment
6.1. Provided that you,
your tenants, managers and agents comply with this Agreement (including
Condition 7 (Charges and Payment) and Condition 8 (Your
Responsibilities)), we will replace the Branded Technical Service Equipment and
/ or where applicable (and only where we are the Lead Brewer) the Generic
Technical Service Equipment if such equipment is:
6.1.1. at the end of its
useful economic life; or
6.1.2. causing material
dispense issues as a result of normal wear and tear.
6.2. In the event that the
Technical Service Equipment requires maintenance, repair or replacement:
6.2.1. otherwise than in the
ordinary course; or
6.2.2. other than as a
result of normal wear and tear,
we retain the right and that of our
subcontractors to charge you for such maintenance, repair and/or replacement
costs.
6.3. Replacement of any
Technical Service Equipment with new Technical Service Equipment will be
determined by us at our sole discretion.
7. Charges and Payment
7.1. You agree to pay us
the Charges (as may be amended from time to time in accordance with
Condition 7.4) in accordance with this Condition 7. The Charges are
exclusive of Value Added Tax unless otherwise stated. VAT will be payable
by you at the prevailing rate, subject to receipt of a valid VAT invoice from
us.
7.2. Subject to
Conditions 7.4 and 7.5:
7.2.1. the Fair Ale Charges
are calculated at a rate of £8.67 per handpull per calendar month; and
7.2.2. with effect from
1st May 2019, the PAYG Charges are calculated at a rate of £13.50 per
Chargeable Line per calendar month.
7.3. You will make payment
of the Charges to us in cleared funds within such period or on such date
as we will specify to you from time to time (“due date”). If
we do not give you a period or specific date then payment will be due within 14
days of the date of our invoice.
7.4. We may amend the
Charges from time to time, but no more frequently than once per calendar year.
We will notify you in advance of the date on which any amended Charges become
effective.
7.5. You will not be
charged the PAYG Charges in respect of any Chargeable Line that has already
been paid for by the brand owner under the one-off connection fee scheme that
was in place prior to 1st May 2019 (provided the relevant brand owner has
provided satisfactory evidence to us that such payment was made) (“Legacy
Paid-Up Brand Owner”) until either of the following occurs in respect of the
relevant Chargeable Line:
7.5.1. you change the brand
pouring through that dispense line (unless you change the brand pouring through
that dispense line to a brand owned by or licensed to a Centrally Settled Brand
Owner or us, in which case, the line would no longer be a Chargeable Line);
or
7.5.2. the python relating
to the Chargeable Line is replaced.
7.6. If payment of
any Charges is not made by the due date, we may claim interest at the rate
prescribed from time to time under the Late Payment of Commercial Debts
(Interest) Act 1998 (as amended and supplemented by the Late Payment of
Commercial Debts Regulations 2002) from the payment due date until payment is
received by us in cleared funds.
7.7. The time
for payment shall be of the essence. Failure to pay any amount due to
us or any other Heineken Group Company by the payment due date, will entitle us
to (at our option):
7.7.1. suspend performance of
the Services in respect of any dispense line in your Outlet if we have not
received the Charges due in respect of that dispense line in full on the due
date;
7.7.2. disconnect any
dispense line in your Outlet from our Generic Technical Service Equipment if we
have not received the Charges due in respect of that dispense line in full on
the due date;
7.7.3. set-off, withhold or
deduct any outstanding Charges from any sum which we, or any other Heineken
Group Company, owe you;
7.7.4. if you purchase
products directly from us, suspend delivery of any undelivered orders and
refuse to accept any order that you place; and / or
7.7.5. remove the Technical
Service Equipment or charge you for its value in accordance with
Condition 9.
7.8. We are
entitled to withhold payment to you of any agreed discounts, bonuses,
rebates, overriders and/or marketing budgets and to recover any such sums
already paid to you if you are in breach of this Agreement or any other
agreements we may have with you.
8. Your Responsibilities
8.1. You must pay the
Charges to us on or before the payment due date.
8.2. You must allow us (or
our subcontractor or representative) safe working access to your outlet to
carry out any work for the change, replacement, maintenance, removal or
collection of the Technical Service Equipment and for auditing purposes, at all
reasonable times.
8.3. You must not sell the
Technical Service Equipment, or offer the Technical Service Equipment for sale,
or allow the creation of any mortgage, charge, lien or other security interest
in respect of the Technical Service Equipment;
8.4. You must ensure that
the Technical Service Equipment supplied is kept in good condition and is
returned to, or able to be collected by, us (or our subcontractor) on demand at
any time.
8.5. You must procure that
all tenants, staff, managers and/or agents comply with this Agreement.
8.6. Where you are
notified that a persistent dispense issue is connected to a failure to comply
with this Agreement, you must ensure that action is taken to remedy the
situation including providing appropriate training and support.
8.7. You must ensure that
the Technical Service Equipment is properly maintained, including by:
8.7.1. complying with all
health & safety requirements;
8.7.2. maintaining cellars
in the range 11 to 13 degrees centigrade and allow product to reach this temperature
before dispense;
8.7.3. not allowing any
adjustments, removals or other amendments to the dispense systems;
8.7.4. carrying out building
works (if required), including provision of access for pythons and other pipe
work;
8.7.5. providing suitable
electrical supplies;
8.7.6. carrying out any
adjustments to bar structures including bar tops (e.g.: drilling, cutting or
filling of gaps left by equipment removed);
8.7.7. providing cellar
cooling systems, flow monitoring equipment, bottle coolers, bulk gas, gas
separation / blending systems and automatic line cleaning systems;
8.7.8. conducting all line
cleaning (excluding SmartDispense) and ensuring all lines are cleaned every 7
days (any costs for additional cleaning required e.g. blitz cleans, premature
python replacement will be your responsibility);
8.7.9. bearing any costs
associated with temporary bars;
8.7.10. ensuring that the
floor of the cellar is watertight;
8.7.11. ensuring that any
costs or obligations on other brewers generated due to bespoke project activity
are agreed between all parties before work commences; and
8.7.12. taking all reasonable
care of equipment whilst it is in your charge, and fully insuring such
equipment.
9. Removal of Technical Service Equipment
9.1. We
reserve the right at all times to remove the Technical Service
Equipment from your Outlet (i) if we reasonably believe you are acting
otherwise than in accordance with the terms of this Agreement, (ii) if you fail
to make payment of the Charges on the due date in accordance with Condition
7: (iii) if we become entitled to terminate the provision of the Technical
Service Equipment and Services in accordance with Condition 10 or (iv) on
termination or expiry of any agreements we have with you for any reason.
9.2. Where Condition
9.1 applies, we will provide notice and you must contact us within 7 days
of such notice to agree an appointment for the removal of the Technical Service
Equipment. If you do not contact us or you do not agree an appointment within 7
days, you agree to allow us (and/or our nominated subcontractor) immediate
access to your outlet and the Technical Service Equipment in order to recover
the Technical Service Equipment.
9.3. If you do
not comply with Condition 9.2, we may proceed with formal action
against you to effect recovery of the Technical Service Equipment and/or to
seek to recover from you the value of the Technical Service Equipment. In
either event we will seek to recover all costs and expenses in connection with
such recovery or enforcement action. In the event that we seek payment of the
value of the Technical Service Equipment in the alternative to recovery of the
Technical Service Equipment, the replacement value and our costs and expenses
so incurred shall be payable by you either on receipt of an invoice from us or
pursuant to a court order. If an invoice is issued, the invoice amount will
form part of the Charges and constitute a debt sum which shall be recoverable
from you as a debt in the event of your failure to pay said invoice on
receipt. You will continue to be liable for the applicable Charges until
such time as the relevant removal(s) is/are complete or the value of the
Technical Service Equipment has been paid.
9.4. Where Technical
Service Equipment has been removed pursuant to this Condition 9 or
pursuant to a court order, we will not be responsible for procuring or
installing replacement dispense equipment at the Outlet.
9.5. We will inspect any
Technical Service Equipment that is returned, removed or collected from an
Outlet pursuant to this Agreement or pursuant to a court order, to ensure that
it is in a condition commensurate with the age of the Technical Service
Equipment (taking into account fair wear and tear). In the event that the
Technical Service Equipment is returned, removed or collected from Outlet in a
condition that is not commensurate with the age of the Technical Service
Equipment (taking into account fair wear and tear), you agree to pay to us, on
receipt of our invoice, any costs of repair or rectification of the Technical
Service Equipment.
10. Termination
10.1. We shall be entitled
to terminate the provision of the Technical Service Equipment and Services
immediately (without liability to you and without prejudice to its other rights
and remedies) if:
10.1.1. you become unable to pay your debts as they fall due (including under any other agreement you have with Heineken); or you commence negotiations with your creditors with a view to rescheduling any of your debts; or you cease trading or announce your decision to do so; or
10.1.2. the value of your assets is less than your liabilities; or
10.1.3. any steps are taken with a view to:
10.1.3.1. appointing an
administrator, receiver, administrative receiver, liquidator, trustee or other
similar officer in respect of you or your assets;
10.1.3.2. enforcing payment of
any of your debts or of any security you have granted; or
10.1.3.3. obtaining a
moratorium in respect of your debts; or
10.1.4. we believe that any
of the events referred to in paragraphs 10.1.1, 10.1.2 and/
or 10.1.3 are reasonably likely to occur;
10.1.5. you fail to comply in
any material respect with the obligations set out in this Agreement (including
Condition 8); or
10.1.6. you fail to pay the
Charges on or before the due date for payment.
11. Transfer of Technical Service Equipment
You must provide us with reasonable
notice of any proposed transfer of your Outlet to another party.
12. Liability
12.1. We do
not exclude any liability to you in respect of (i) death or personal
injury caused by our negligence, (ii) fraud or fraudulent misrepresentation, or
(iii) anything else that cannot be excluded by the operation of
law.
12.2. Subject
to condition 12.1, under no circumstances whatsoever will we be
liable to you (whether in contract, tort (including negligence), breach of
statutory duty, or otherwise) for:
12.2.1. any loss of profit;
12.2.2. loss of business or
business opportunity;
12.2.3. loss of revenue;
12.2.4. loss of anticipated
savings;
12.2.5. depletion of
goodwill; or
12.2.6. any indirect or consequential
losses of any nature, howsoever arising, under or in connection with this
Agreement or any contract we may have with you.
12.3. Subject to
Conditions 12.1, 12.2 and 12.4, our total aggregate
liability to you in respect of all other losses arising under or in connection
with this Agreement, whether arising in contract, tort (including negligence),
breach of statutory duty, or otherwise will be limited to the Charges paid by
you directly to us in the three months preceding the date that event, act or
omission giving rise to the liability occurred.
12.4. We will not be liable to you or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of our obligations, if the delay or failure was due to any cause beyond our reasonable control or due to your fault. This includes strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or those of a third party), adverse weather conditions, default or delays of suppliers or subcontractors, breakdown of plant or equipment, and material shortages.
12.5. There are no
conditions, warranties, representations or terms, express or implied, that are
binding on us except as specifically stated in this Agreement. Any
condition, warranty, representation or term concerning the Technical Service
Equipment or Services which might otherwise be implied into or incorporated in
this Agreement, whether by statute, common law or otherwise, is hereby expressly
excluded.
12.6. You will indemnify us
against any third party claims, losses, damages, expenses and costs we incur as
a result of your negligence or any breach by you of this Agreement.
13. Data Protection
13.1. We comply with Data
Protection Laws and will use any personal data you provide to us in accordance
with Data Protection Laws. Please note that any information, including
any personal data, you provide to us during the course of the trading
relationship with us may be used by us and other Heineken Group Companies and
our subcontractors, representatives and/or agents for the purposes of our
fulfilling our obligations to you under this Agreement.
13.2. For more
information on how we use your personal data and your rights with respect
to the personal data we hold on you, please review our Privacy Policy (available
at https://www.heineken.co.uk/legal-hub/privacy-policy or email dataprotection@heineken.co.uk to request a
copy).
13.3. We are required to
comply with money laundering legislation and regulations designed to combat the
laundering of the proceeds of crime. Accordingly, we:
13.3.1. reserve the right to
withhold or delay performance of the Services or provision of any Technical
Service Equipment until we have been provided with satisfactory evidence of
your identity and the identity of the person making payment to us on your behalf
(if applicable);
13.3.2. may be required to
notify the appropriate authorities of issues relating to your affairs; and
13.3.3. reserve the right to
refuse to accept cash payments.
13.4. We shall have no
liability to you for any losses that may be incurred as a result of any of the
above.
14. Set-off
14.1. If you owe us, or any
other Heineken Group Company, any payment or other liability, then we may
set-off, withhold or deduct that amount from any sum which we, or such other
Heineken Group Company, owe you.
14.2. If we, or any other
Heineken Group Company, owe you any payment or other liability, you shall not
be permitted to set-off, counterclaim, withhold or deduct any sum which we owe
you from any amount that you owe us, or any other Heineken Group Company.
15. Payment Terms
15.1. We reserve the right
at any time, at our sole discretion, to amend or withdraw either or both of the
(i) payment terms and (ii) method of payment.
15.2. In the event of your
breach of this Agreement, or any circumstances which give us reasonable
concerns about your solvency, we reserve the right to amend or withdraw either
or both of the payment terms or method of payment.
15.3. In the event of any
direct debit being dishonoured, a charge of £30.00 excluding VAT (or such other
reasonable sum as we may from time to time advise you) will be made on your
account to cover bank and administrative costs.
15.4. We may make your
invoices and statements available to you electronically. We reserve the
right to make a reasonable administration charge for any hard copy
invoice/statements requested by you.
15.5. In the event that we
make any payment or overpayment to you in error, such payment to you will be
treated as a debt due to us and you must repay the amount by which you have
been overpaid to us in full within 28 days of being made or becoming aware of
our payment error.
16. Waiver
No failure or delay by either of
us in exercising our rights or remedies under this Agreement or any contract we
may have with you will prevent or restrict the exercise of such rights or
remedies at any time. No waiver (whether express or implied) by either of us of
any breach of any of this Agreement or the terms of any contract we may have
with you by the other will be construed as a waiver of any subsequent breach of
the same or any other provision.
17. Third Party Rights
Except as expressly provided in this
Agreement, no third party will have any rights under the Contracts (Rights of
Third Parties) Act 1999 or otherwise to enforce any term of this Agreement or
any contract we may have with you.
18. Compliance with Laws
In performing your obligations under
this Agreement, you must, and will procure that each of your or your holding
company’s direct or indirect subsidiaries, comply with all applicable laws,
statutes, regulations, codes and HMRC Excise Notices from time to time in
force, including the Bribery Act 2010, Data Protection Laws, the Modern Slavery
Act 2015 and the Competition Act 1998.
19. Notice
19.1. A notice given to a
party under or in connection with this Agreement must be in writing and sent to
the party in accordance with the following:
19.1.1. to us at our
registered office address (Heineken UK Limited, 3-4 Broadway Park, South Gyle
Broadway, Edinburgh EH12 9JZ) and marked for the attention of the Head of
Legal; and
19.1.2. to you at your
trading address,
or as otherwise notified in
writing to the other party.
19.2. Any notice will be
deemed to have been received:
19.2.1. if delivered by hand,
on signature of a delivery receipt; or
19.2.2. if sent by pre-paid
first-class post or other next working day delivery service, at 9.00am on the
second business day after posting.
20. Law and Jurisdiction
Any dispute or claim arising out of or
in connection with our trading relationship with you or the formation of any
contract we may have with you (including non-contractual disputes or
claims) shall be governed by and construed in accordance with English law and
the English Courts will have exclusive jurisdiction over any disputes arising,
unless your business is in Scotland, in which case such jurisdiction will be
non-exclusive.
21. General
21.1. We reserve the right
to transfer to any person the right to receive payment of any money payable to
us, and/or any of our other rights.
21.2. The Intellectual
Property Rights will (as between you and us) remain vested in us. You
will not acquire any title in the intellectual property rights. You may
not copy or imitate the Intellectual Property Rights, products, containers or
equipment or do or omit to do, or permit any third party to do or omit to do,
anything which may damage such Intellectual Property Rights. Any goodwill
arising from the use of the Intellectual Property Rights shall accrue to
us.
21.3. You are not entitled
to assign, re-sell, charge, encumber or otherwise transfer any of your rights
or obligations under this Agreement, in whole or in part, at any time without
our prior consent and any attempt to do so will enable us to terminate this
Agreement without prejudice to our other rights and remedies. We shall be
entitled to subcontract any or all of our obligations under this
Agreement.
21.4. Nothing in this
Agreement is intended to, or shall be deemed to, establish any partnership or
joint venture between any of the parties, constitute any party the agent of
another party, or authorise any party to make or enter into any commitments for
or on behalf of any other party.
22. Amendments
We reserve the right to alter this
Agreement generally or for any particular class of products or customer. We
will use our reasonable endeavours to give at least one week’s notice of
alteration.
23. Severance
If any provision or part-provision of this Agreement becomes invalid, illegal or unenforceable (in whole or in part) 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 condition will not affect the validity and enforceability of the remaining provisions (and/or the remainder of such provision).
Last Updated: 10th March 2021