Justerini & Brooks Limited - General Terms and Conditions of Sale and Storage for Trade Customers

Note to Customer – We will only do business with you on the basis of these General Conditions, and each agreed delivery of Products will be treated as a separate contract: see below for further details.

1.1 In these general terms and conditions of supply (“General Conditions”):

(a) “Case” means a case holding 9 litres made up of 6 magnums, 12 bottles or 24 half-bottles;

(b) “Control” means, in relation to any person, the power to direct the management or policies of that person directly or indirectly through the ownership of shares or voting securities or by contract or otherwise and "Change of Control" means a change in the person or persons exercising such Control.

(c) “Contract” means any or (as the case may be) each contract that we enter into with you for the supply of Products (however concluded), and these General Conditions shall form a part of each such contract;

(d) “Due Date” means 5.00 p.m. on the 21st day of the month following the date of invoice, or in the event that such day is not a Working Day, the first Working Day immediately preceding it;

(e) “IP Rights” means any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design right, rights in trade, business or domain names, rights in trade dress, rights in inventions, rights in confidential information or know-how or any similar or equivalent rights in any part of the world;

(f) “J&B Property” means all equipment, items, documents and materials supplied by us or on our behalf in relation to the storage and sale of the Products including all containers and packaging (e.g. pallets) in or on which Products are delivered and all Marketing Materials;

(g) “Marketing Materials means sales, marketing, advertising and promotional materials relating to the Products;

(h) “Products” means any products that we sell (and any part(s) of them);

(i) “Trade Marks” means the registered and unregistered trade marks (including applications) relating to the Products that you purchase from us, and whether such trade marks are owned by us or our affiliates or licensors;

(j) “we”, “us” or “our” means Justerini & Brooks Limited;

(k) “Working Day(s)” means days excluding Saturdays, Sundays and public holidays in Great Britain; and

(l) “you” or “your” means the person, firm or company purchasing Products from us.

1.2 In these General Conditions, unless otherwise specified:

(a) reference to a clause is to a clause of within these General Conditions;

(b) words importing the singular include the plural and vice versa; use of any gender includes the other genders;

(c) references to a “company” shall be construed so as to include any corporation or other body corporate, wherever and however incorporated or established; references to a “person” shall be construed so as to include any individual, firm, company, corporation, body corporate, government, state or agency of state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality).

1.3 The headings and titles in these General Conditions are for convenience only and shall not affect their interpretation.

1.4 The terms “including” or “includes” or similar shall not be construed so as to limit the scope or meaning of any preceding words.

1.5 A reference to any statutory enactment shall be construed as a reference to that enactment as at the date of the Contract and as amended or re-enacted from time to time.

2.1 Each order placed by you: (a)for the supply of Products (other than En Primeur Wines (being wine that is purchased prior to it having been bottled) shall only constitute a Contract between you and us if confirmed either by a written acknowledgement of your order duly issued to you by us or (if earlier) by our delivering the relevant Products to you; (b) for the supply of En Primeur Wines, shall only constitute a Contract between you and us when we issue you with an order acknowledgement, pro-forma invoice or invoice, whichever is earlier; and (c) for the storage of Products shall only constitute a Contract between you and use if we confirm to you that we agree to store your Products or other wines (together, “Stored Products”) in the warehouse operated by Cellarers (Wines) Limited (“Cellarers”) on our behalf (“Reserves”). If so confirmed, your order shall constitute a separate Contract that is subject to these General Conditions. You shall ensure that the terms of your order and any applicable specification are complete and accurate. We are free to accept or decline the whole or part of any order at our absolute discretion. Any decision we make in this regard is final. Where we decline part of an order we will confirm this to you and afford you the opportunity to continue with the part of the order we have accepted.

2.2 The availability of the Products will be checked after we have received your order. If, for any reason, at any point before delivery the of Products to you, we are unable to fulfil your order (or any part thereof), we will advise you of this and, if we have already received payment from you, the appropriate amount will be credited to you. For the avoidance of doubt, we will only refund you the exact price you paid for the Products, not the market value of the Products at the time of refund.

2.3 Unless otherwise agreed by or for us: (a) delivery of the Products shall take place at your designated warehouse in mainland Great Britain; (b) any dates specified by us for delivery are intended to be an estimate, and time for delivery shall not be of the essence or be made of the essence by notice; and (c) if no dates are so specified, delivery shall be within a reasonable time. En Primeur Wines will not be dispatched until the date on which such wines become available to us.

2.4 You shall provide, at the place for delivery under clause 2.3 above and at your expense, adequate and appropriate equipment and manual labour for taking delivery of the Products.

2.5 If you fail to accept delivery of any of the Products when they are ready for delivery, or we are unable to deliver the Products on time because of your act(s) and/or omission(s), then you shall reimburse us on demand for all costs and expenses incurred by us as a result of such failure or inability including the cost of storing the Products in Reserves until delivery takes place.

2.6 Standard delivery charges, packaging charges (with respect to mixed cases), handling charges (with respect to Stored Products that have been purchased from suppliers other than us) and/or express delivery charges shall be invoiced at the applicable rate, as amended by us at our sole discretion from time to time and available on request. Deliveries to destinations outside mainland Great Britain shall incur additional delivery charges, and charges may vary between destinations within mainland Great Britain.

2.7 The quantity of any consignment of Products as recorded by us on despatch shall be conclusive evidence of the quantity received by you on delivery unless you can provide evidence proving the contrary. If we deliver a quantity of Products of up to 5% more or less than the quantity specified in the Contract, you may not object to or reject any or all of the Products by reason of the surplus/shortfall and shall pay for such Products at the pro rata Contract rate.

2.8 We may deliver the Products by separate instalments, in which case each instalment shall be: (a) invoiced and paid for in accordance with the Contract; and (b) treated as constituting a separate Contract subject to these General Conditions, and no cancellation or termination of any such Contract shall entitle you to repudiate or cancel any other such Contract.

2.9 Sales of Products include all retail packaging but exclude all other containers and packaging (e.g. pallets), which constitute J&B Property and must be returned to us in good condition (fair wear and tear excepted), failing which you shall be charged the repair or replacement cost as appropriate. Unless indicated to the contrary at the time of sale, we do not guarantee that we will supply the Products in their original packaging.

2.10 We may offer certain Products with the condition that they are not re-sold or moved out of the Reserves (except for home delivery) within five years of the physical release from the wine producer. We reserve the right to withhold the offer of future wine allocations if you have not complied with this condition.

2.11 We will normally only accept orders above such minimum value as we may specify from time to time, details of which are available upon request. Orders below the minimum value will be subject to additional order processing and delivery costs as we may specify from time to time and details of which are available upon request.

3.1 Only whole unmixed Cases may be put into Reserves.

3.2 Products purchased from other suppliers may be stored by us subject to payment of a handling charge (see clause 2.6). It is your responsibility to authenticate these wines upon arrival at the Reserves. We will not accept liability for the provenance or condition of wines purchased from other suppliers or for any defect or other fault that these wines may have or may develop (other than a breach by us of our obligations of storage set out in clause 3.3).

3.3 We will use reasonable care and skill in the safekeeping and storage of all Stored Products, but beyond this we will not be responsible for the state and condition of the Stored Products, including any change resulting in ullage or natural aging effects of the Stored Products and/or packaging. Without prejudice to the foregoing, in the event that any of the cardboard cases of the Stored Products is damaged and becomes compromised you agree that it will be re-packed into a Justerini & Brooks case to maintain the safety of the Stored Products. However, you accept that this repacking may affect the resale value of the Stored Products.

3.4 In the unlikely event of a dispute between you and us about the Stored Products you have stored in Reserves, we shall rely on the invoices issued to you in respect of any Stored Products in Reserves purchased from us prior to their transfer to Reserves, delivery receipts identifying the Stored Products transferred to Reserves and the Stock Certificate, (being the annual confirmation of Stored Products in Reserves on your account). The information contained or not contained within these documents shall be final and conclusive.

3.5 If you sell any of your Stored Products to a third party, you must notify us immediately, by post, to our registered address and marked for the attention of Cellarers, or by email to cellarers@justerinis.com, of the identity of the third party and confirm whether they wish to continue storing the Stored Products in Reserves. If the third party wishes to continue storing the Stored Products in Reserves you must:

(a) ensure that we receive written confirmation from that third party of their intention to continue storing the Stored Products in Reserves and their agreement to these General Conditions; and

(b) confirm the date from which they will be liable for the Storage Charges (the "Transfer Date").

3.6 If the third party does not wish to continue storing the Stored Products in Reserves you must give us notice of your intention to withdraw from Reserves, in accordance with and subject to clauses 3.9 and 3.10, and the address of the third party to which the Stored Products should be delivered. Any such delivery to a third party will be at your cost.

3.7 You will remain liable to pay the Storage Charges until the earlier of the date upon which we receive written confirmation from the third party and are notified of the Transfer Date (in the manner set out above), or the date the Stored Products are withdrawn from Reserves, as applicable.

3.8 We shall procure that all Stored Products held in Reserves will be insured against damage, loss and/or theft, from the date such stock is delivered into Reserves until its withdrawal, on the basis of its current market value. Any dispute about the value of stock held in Reserves shall be referred to Christie, Manson & Woods who will act as final independent arbitrator.

3.9 Stored Products may only be withdrawn from Reserves as one or more complete unmixed Cases.

3.10 Standard delivery of Stored Products withdrawn from Reserves will normally be made within 14 days of receipt of written notice of withdrawal. However, any indication as to when the Stored Products from Reserves will be delivered is an estimate only. Clause 2 shall apply to all deliveries of Stored Products withdrawn from Reserves.

Products

4.1 Unless otherwise agreed in writing by or for us, the prices for the Products shall be our respective list prices that apply on the date of invoice. The list prices may be varied by us from time to time by giving you no less than 30 days’ notice.

4.2 En Primeur Wines are offered by us for sale at the prices available on demand on each working day from our sales office. En Primeur Wines are sold by us to you under bond and so our list price does not include any VAT, taxes and duties which will be payable by you at the prevailing rates at the time when they are dispatched to you from Reserves.

4.3 With the exception of Products sold under bond or exported outside of the United Kingdom, all prices for Products and Storage Charges shall be exclusive of excise duty and VAT, which shall (other than for any order relating to duty-suspended Products) be charged at the applicable rate as at the date of invoice. All orders for export outside of the United Kingdom may be subject to import duties and/or local taxes on alcohol. You will be responsible for payment of all duties and taxes, including if Products which were originally sold under bond become duty payable.

4.4 In the case of an order for delivery by instalments, the price payable for each instalment shall be our list price current as at the date of dispatch of such instalment.

4.5 We may grant you, at our sole discretion, discounts which may be conditional on performance of certain obligations by you and which will either be included on the respective invoices as determined by us (“On-Invoice Discounts”) or paid to you as retrospective rebates (“Off-Invoice Discounts”). On-Invoice Discounts and Off-Invoice Discounts may be varied by us from time to time giving you no less than 30 days’ notice. If you fail to comply with any of the obligations which is a condition to an On-Invoice Discount or Off-Invoice Discount, we may be entitled to withhold payment of such amounts and/or reclaim equivalent amounts by issuing a corresponding debit note to you (“Debit Note”). The amount set out in the Debit Note shall be payable within 30 days of the date of the Debit Note. If the Debit Note is not paid within the 30 days, we shall be entitled to exercise any of our rights set out in these General Conditions, including those set out in clauses 5.5, 5.6, and/or 12.1(d).

Storage Charges

4.6 Storge charges for Stored Products will be charged at our list prices (as amended from time to time) current at the time we invoice you for them (“Storage Charges”).

4.7 Storage Charges for the period between the date on which your Stored Products are put into Reserves and the following July will be invoiced in arrears in July and each subsequent July or until notification of withdrawal of your Stored Products from Reserves when your final charge will be calculated.

4.8 Any and all Storage Charges must be paid in full before we deliver your Stored Products to you after their withdrawal from Reserves.

5.1 Unless otherwise agreed in writing by or for us, you shall pay us for all invoiced items and Products by the Due Date and in pounds sterling, meaning that we must have received the full payment by the Due Date.

5.2 Our payment method is by direct debit or BACS transfer to such account as we may nominate from time to time in writing. We reserve the right to impose a reasonable surcharge on payments by other methods. Time is of the essence for all payments due to us from you. No payment shall be deemed received until we have received payment in full.

5.3 If the Products are delivered in instalments, we shall be entitled to invoice each instalment as and when delivery thereof has been made and payment shall be due in respect of each instalment which has been delivered notwithstanding non-delivery of other instalments or other default on our part. If you do not pay for any instalment of the Products by the Due Date, the price for the entire quantity of Products ordered shall become immediately due and payable.

5.4 Products purchased for storage, or for export outside of Great Britain, must be paid in full before being put into Reserves or dispatched, as appropriate.

5.5 You shall not, without our prior written consent: (a) set off any sums payable to you by us against any sums payable to us by you; or (b) deduct in advance any amounts due from us from payments due from you. We may: (a) set off any sums payable by you to us against any sums payable by us to you; and (b) deduct in advance any amounts due from you to us from payments due by us to you.

5.6 If any payment is not received by us by the date on which it falls due, then without prejudice to any of our other rights or remedies:

(a) you shall be liable to pay interest on any amount outstanding at the annual rate of 4% above Barclay’s Bank plc’s base rate from time to time from the date on which payment was due accruing on a daily basis until the date on which payment is received by us (after as well as before judgment);

(b) we may cancel any further deliveries to you;

(c) credit facilities may be withdrawn, and further supplies of Products will be on a cash-with-order basis only;

(d) we may require you to deliver to us Products to which title has not passed to you, as set out in clause 6.10 below;

(e) we may withhold or cancel any On-Invoice Discounts or Off-Invoice Discounts; and/or

(f) if the payment relates to any Storage Charges or other charges for storing your Stored Products we will be entitled to sell some or all of the Stored Products by the best method reasonably available. You will be entitled to retain the proceeds of the sale which remain after we have deducted all outstanding charges, any costs we have incurred in connection with the sale and the Storage Charges for the period between the date payment became due and the date of sale, but we will not be required to pay interest on the proceeds. If, after making reasonable efforts to contact you, we cannot contact you at your last known address to return the remaining proceeds of sale, we reserve the right to retain any amounts to cover reasonably anticipated future Storage Charges or other costs. If after having made further reasonable efforts to contact you we still cannot contact you to return the remaining proceeds after having deducted actual and anticipated costs, we shall be entitled to retain those proceeds. For the avoidance of doubt, you will still owe us for any outstanding amounts that are not covered by the proceeds of sale.

5.7 We do not supply Products on a sale-or-return basis. You may not return any Products to us or require us to take back any Products from you after delivery to you (except in the circumstances set out in clause 7 below) and, if you purport to accept delivery of part only of your order, we reserve the right not to deliver the whole order.

5.8 We may, at our sole discretion, invite you to open a credit account with us. We reserve the right to conduct appropriate identity and credit checks prior to opening any such account and on a continuous basis thereafter.

6.1 Risk of damage to or loss of the Products shall pass to you upon the earlier of: (a) delivery of the Products to you (as set out in clause 2.3 above); (b) where the Products are to be collected by or for you, when the Products are so collected; or (c) in the case of En Primeur Wines, when we receive payment from you in respect thereof or when we issue you with an order acknowledgement, pro-forma invoice or invoice, whichever is earlier.

6.2 Legal and beneficial title in the Products (other than En Primeur Wines) shall remain with us, and shall not pass to you, until we have received payment in full of all amounts owing to us by you (including the amount of any interest which has accrued and any Debit Notes) in respect of: (a) all Products the subject of the relevant Contract; or (b) all other Products supplied by us to you under any other Contract whatsoever. Legal and beneficial title in En Primeur Wines shall remain with us, and shall not pass to you, until we have received title to the relevant En Primeur Wines and we have received payment in full of all amounts owing to us by you (including the amount of any interest which has accrued and any Debit Notes) in respect of: (A) all En Primeur Wines that are the subject of the relevant Contract; and (B) all other Products supplied by us to you under any other Contract whatsoever.

6.3 Beneficial and legal title in all J&B Property will, at all times, remain with us. You shall not: (a) create, or allow to be created, over any J&B Property any lien, charge or other security; or (b) lend, lease, sell or otherwise part with possession of any J&B Property or represent that you may do any of those things. All J&B Property must be returned to us promptly on demand without loss or damage, other than fair wear and tear. Alternatively, if requested by us at any time, you will provide access to us and our authorised representatives to your premises (or procure such access to the premises of any third party where the J&B Property is stored) premises so that we may repossess any J&B Property. You also agree to indemnify us in respect of any failure to so return any J&B Property within fourteen (14) days of being requested to do so in writing and/or for any loss of or damage to J&B Property whilst it is in your possession.

6.4 You may resell any Products in which title has not passed to you subject to the provisions of clause 8 below, but on condition that: (a) any such sale shall be a sale of our property on your own behalf; and (b) you shall deal as principal when making such a sale.

6.5 As a further condition to any such resale, you shall hold such part of the proceeds of sale as represent the amount owed by you to us on our behalf and shall keep such proceeds identified and separate from any other monies and you shall account to us accordingly. We shall be entitled to recover from you the price of any Products (plus VAT and excise duty) delivered by us notwithstanding that property in and/or title to any of the Products has not passed from us.

6.6 Until title in the Products passes to you (or, if earlier, such resale), you shall, at no cost to us: (a) hold the Products on a fiduciary basis as our bailee; (b) keep the Products separate from your own goods and from others’ goods and properly stored, protected and readily identifiable as our property; (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; (d) maintain the Products in satisfactory condition; (e) keep the Products insured on our behalf with a reputable insurer for their full price against all risks to our reasonable satisfaction and, at our request, produce such policy of insurance to us; (f) notify us immediately upon the occurrence of any of the events set out in clause 12.1(c); and (g) give us such information relating to the Products as we may from time to time reasonably require.

6.7 Any payment by you for any Products supplied under the Contract shall be appropriated first to Products which have at the date of receipt by us of the payment been disposed of by you, and we shall be entitled to appropriate any balance after such appropriation to such other of the Products supplied by us to you as we shall in our absolute discretion decide.

6.8 You shall not in any way pledge or charge by way of security for any indebtedness or otherwise encumber any Products to which title has not passed to you and, if you do so, all monies payable for such Products shall (including any Debit Notes) (without prejudice to any of our other rights or remedies) become immediately due and payable (whether or not already invoiced by us).

6.9 In the event of: (a) a breach of clause 6.6 above; or (b) a breach of clause 6.8 above; or (c) any of the circumstances described in clause 12.1(a), 12.1(c), or 12.1(d) below:

(a) your right to possession of the Products shall immediately cease;

(b) we will automatically be deemed to rely upon clause 6.2 to retain title unless we indicate otherwise;

(c) your right to resell, deal or part with the possession of any Products in which title has not passed to you shall immediately cease;

(d) you must immediately ensure that the Products are kept separate from your own goods and from others’ goods, properly stored, protected and readily identifiable as our property; and

(e) we may withhold delivery of any undelivered Products and stop any Products in transit.

6.10 Until title in the Products passes to you (or if your right to possession has ceased), we may at any time require you to deliver the Products immediately to us as we may direct and you irrevocably agree that we, our agents and our employees may without prior notice: (a) enter any of your premises or the premises of any third party where the Products are or may be stored; and (b) inspect and/or (if you fail so to deliver the Products) repossess the Products. You shall provide access for us to those premises or shall procure that access is provided for us to those premises so that we may inspect and/or (if you fail so to deliver the Products) repossess the Products and thereafter sell the Products (and retain the proceeds).

6.11 If we cannot determine whether any Products are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.

6.12 On termination of the Contract (for any reason), our (but not your) rights contained in this clause 6 shall remain in effect.

7.1 You shall notify us of any failure to deliver within five (5) Working Days of the intended date of despatch that was notified to you by us. We shall not, except as provided in this clause 7, be liable for any loss or damage arising from non-delivery or delay in delivery (for whatever reason and whether in respect of the whole or part of the Products), and you shall not be entitled to terminate or cancel the Contract because of any such delay in delivery or non-delivery.

7.2 You shall on delivery satisfy yourself as to any ’best before’ date and shall be deemed to be satisfied as to such dates unless you immediately and by written notice refuse to accept delivery of the Products concerned, except where such Products are designated as duty-suspended, in which case you shall accept delivery of such Products but shall immediately notify us of the same by written notice.

7.3 You shall ensure that all Products are examined when you or any person acting on your behalf receives them. You shall notify acceptance of Products or any damage to the Products on the Proof of Delivery document, and any Products which are damaged (including cartons) shall be retained so that we may inspect them.

7.4 Any Products designated as duty-suspended which were damaged while they were at our risk must be returned to us.

7.5 Subject to your complying with the provisions of clauses 7.1 to 7.4 (inclusive) above, we shall replace any Products that were damaged while they were at our risk or deliver any Products not delivered or, at our option, credit you with the price of Products so damaged or not delivered. For the avoidance of doubt, we will only refund you the exact price you paid for the Products, not the market value of the Products at the time of delivery.

7.6 No representation about the Products shall have effect unless expressly agreed in writing duly signed by or for us. You acknowledge that you have not relied on any statement, promise or representation made or given by or for us which is not expressly set out in the Contract. Subject to clause 7.7, if any of the Products are defective in manufacture or are contained in defective containers, our liability (howsoever arising) in respect of any such defects shall be limited to the replacement of the defective Products or, at our option, crediting you with the price of the defective Products. The Products are otherwise sold without any guarantees or representations and all warranties, conditions or terms (whether statutory or otherwise and whether express or implied) to the contrary are, to the fullest extent permitted by law, expressly excluded. For the avoidance of doubt, this shall not exclude the implied undertakings under section 12 of the Sale of Goods Act 1979.

7.7 We do not warrant taste or drinkability of wines and in view of the nature of the wines we do not provide refunds for corked wines, oxidised wines, prematurely oxidised wines or wines tainted by any bacterial fault. Where you discover the wine is faulty upon opening the bottle, it is your responsibility to promptly inform us and we will then inform you if we require you to return the faulty wine and any other bottles of the same vintage you have purchased from us (in which case you shall promptly return those wines to us and we shall refund you the exact price you paid for those wines). You must keep the remaining bottles of the same wine in their packaging until we inform you whether or not we require you to return them to us. We will not refund you for any additional bottles opened by you. You accept that wines purchased may be subject to normal wear and tear associated with the nature of these wines and that the condition of the wines varies according to its age. As such, the wine we sell to you will be of a condition to be expected in view of its age and provenance and we will not be responsible for minor defects or imperfections or any condition resulting from the nature or age of the wine. We cannot warrant any provenance or other information given to us by third party suppliers.

7.8 All illustrations, drawings, catalogues and descriptive material are of a generally informative nature only and do not form part of any specification or description of the Products except to the extent expressly agreed to in writing by or for us.

7.9 Except as provided in this clause 7, we shall not be liable for any loss or damage of whatever nature and however caused. Nothing in these General Conditions shall, however, exclude or restrict our liability for fraud, for death or personal injury resulting from our negligence or for any matter for which we cannot lawfully exclude (or attempt to exclude) our liability.

7.10 In view of the difficulties of administering and verifying late and incomplete claims for any Off-Invoice Discounts and funding that we may (at our discretion) agree to provide for promotions, complete claims (accompanied by invoices and supporting documentation) must be received by us no later than 12 months after completion of the promotional activity or period concerned. We shall not accept, or be liable for, any such claims received after that time.

8.1 You shall not resell the Products except in good condition in or from the bottles or containers supplied by us and exactly as supplied by us or as we otherwise authorise in writing. The bottles and containers of the Products shall at all times only be used to contain and/or dispense the Products, and no other product or substance shall be placed in the bottles or containers at any time.

8.2 You shall store, condition, package and label all bulk Products, and shall procure that they are stored, conditioned, packaged and labelled, strictly in accordance with our requirements as notified to you from time to time.

8.3 Draught Products shall be dispensed or sold for dispensation only through our approved draughting equipment and founts and under our designated Product name.

8.4 In the interest of quality control, you agree to serve the Products to your customers only within the time limits recommended by us.

8.5 You shall promptly on demand supply to us samples of all Products, and Marketing Materials for Products, and shall provide us and our authorised representatives with access to your premises (or procure such access to the premises of any third party where the Products, Marketing Materials and J&B Property are stored) at any time during normal business hours to inspect Products, J&B Property and Marketing Materials to verify your compliance with the terms of this clause 8.

8.6 You agree that you will resell the Products in the United Kingdom. If we have reasonable cause to believe that you are selling Products outside of the United Kingdom, we reserve the right to reduce quantities of the Products supplied to you or terminate this Contract immediately on written notice to you. Without prejudice to the foregoing, you undertake to us that the Products will not at any time subsequent to sale to you become available for purchase in any territory outside the European Union (“EU”) and the European Free Trade Association (“EFTA”), or on ships or from aircraft stores or in any duty-free shop or other duty-free retail establishment wherever situated. We, and other relevant Trade Mark owners, expressly reserve the right to take all action we deem necessary against you or any third party in relation to any unauthorised sale, import or export of the Products that would infringe J&B IP Rights.

8.7 If the condition in clause 8.6 above is breached, we may without prejudice to any of our other rights or remedies: (a) suspend or cancel (in whole or in part) further deliveries, without any further liability to you; (b) recover from you damages for any loss or damage to our business arising directly or indirectly out of this breach (including the amount of any liability to our parent companies under the indemnity referred to in clause 16.6 below); (c) withhold any On-Invoice Discounts, Off-Invoice Discounts or other discounts; and/or (d) request, and you shall promptly supply full details (including name, address, type and quantity of Product supplied) of the persons to whom the Products were resold. Evidence of availability for purchase of a portion only of the products delivered under the Contract shall be deemed to be conclusive evidence of availability of all the Products so delivered.

8.8 You shall procure that purchasers of Products from you are subject to the same (or equivalent) conditions as those set out in this clause 8.

9.1 The Products are sold on the conditions that: (a) you undertake to us that the Products will not at any time subsequent to sale to you become the subject of excise duty evasion; and (b) you undertake to us that you will at all times comply with the conditions of your approval under the HMRC Alcohol Wholesale Registration Scheme (as set out in Excise Notice 2002) (“AWRS”) including that you are a “fit and proper person” and the due diligence condition.

9.2 You shall notify us immediately in the event of: (a) a detention, seizure or forfeiture of the Products (whether such Products are held by you or purchasers of the Products from you) relating to excise duty evasion; (b) any civil or criminal investigation of you (including any of your partners, directors, shareholders, associates or key persons), your transactions or your supply chain relating to excise duty evasion; or (c) your AWRS or other excise duty approval being revoked by the relevant authority.

9.3 If at any time we reasonably suspect that either or both of the conditions in clause 9.1, has been or will be breached by you, or if we become aware of the occurrence of one or more of the events set out in clause 9.2 above (whether as a result of your notification of the same or otherwise), then, without prejudice to any of our other rights or remedies, we may at our discretion: (a) continue to supply the Products to you, but only on a duty-paid basis; (b) suspend or cancel (in whole or in part) further deliveries, without any further liability to you; (c) request you to supply full details (including name, address, type and quantity of Product supplied) of the persons to whom the Products were resold and a copy of your due diligence files held under the AWRS due diligence condition in respect of the persons to whom the Products were resold, and you shall promptly supply these details and due diligence files to us; (d) withdraw credit facilities and, in our sole discretion, make further supplies on a cash-with-order basis only; and/or (e) recover from you damages for any loss or damage to our business arising directly or indirectly out of the breach or event (including the amount of any liability to our parent companies under the indemnity referred to in clause 16.6 below).

9.4 You agree that we or our authorised representatives may at any time at our discretion: (a) inspect your due diligence procedures implemented pursuant to the AWRS; and (b) carry out supply chain checks relating to the Products to verify your compliance with the AWRS due diligence condition. You shall provide us and our authorised representatives with all documentation and data requested for these purposes. You shall also provide access to us and our authorised representatives to your premises (or procure such access to the premises of any third party where the Products are stored) for these purposes.

9.5 You shall procure that purchasers of Products from you are subject to the same (or equivalent) conditions as those set out in this clause 9.

10.1 You shall not to do anything calculated or likely to harm our reputation or the reputation of: (a) any of our affiliates; (b) the Products; or (c) our or any of our affiliate’s IP Rights.

10.2 All IP Rights in the Products and materials (including Marketing Materials) provided by us or on our behalf to you in connection with the Contract shall remain our or our licensors’ property, and nothing in the Contract shall assign or otherwise transfer title to you in any IP Rights. We hereby grant you a limited, non-exclusive licence to use the Trade Marks for the duration of the Contract solely in order to use, promote, market and supply the Products in accordance with the Contract and in accordance with any brand guidelines or other such requirements we may communicate to you from time to time.

10.3 Subject to the remainder of this clause, you may reproduce the Trade Marks on any Marketing Materials developed by you or on your behalf for the Products. You shall submit all Marketing Materials for our prior written approval before publication, broadcast or other use. In any case, you shall ensure that any reference to or use of the Trade Marks is in a manner and form approved by us and accompanied by an acknowledgement that the Trade Mark belongs to us or our licensors. All goodwill in your use of the Trade Marks shall accrue to our benefit or the benefit of our licensors.

10.4 You shall:

(a) not use any Trade Mark as, or as part of, any corporate or business name;

(b) not use or register any trade mark or logo which is identical or confusingly similar to any Trade Mark;

(c) not alter, deface, remove or make any addition to the Products’ labelling, the Products’ packaging, the Trade Marks on the Products or to any Marketing Materials provided by us;

(d) distribute and sell the Products only under the Trade Marks, and not use any other trade mark on or in relation to the Products;

(e) ensure that publication, broadcast and use of your Marketing Materials shall not infringe any third party IP Rights; and

(f) not sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference or designate the Trade Marks to any other party.

10.5 You shall, immediately give us notice in writing if you become aware of any unauthorised use or infringement of our or our licensors’ IP Rights (including the Trade Marks). You shall co-operate at all times with us in the prevention of any such unauthorised use or infringement. However, we shall in our absolute discretion, decide what action to take in respect of the unauthorised use or infringement (if any).

In this clause “Confidential Information” means the existence and provisions of the Contract and any other information and materials relating to us, our affiliates or our or our or our affiliates’ business disclosed to you by or on behalf of us (or otherwise obtained by you) at any time. You shall keep the Confidential Information strictly confidential and shall not use it or disclose it to any third party (except solely, if bound by equivalent obligations of confidentiality, any of your personnel that reasonably require access to Confidential Information for the purpose of fulfilling your obligations under the Contract). You shall, and shall procure that any such personnel shall, at our request or in any event upon termination of the Contract for any reason: (a) return any or all Confidential Information to us; (b) ensure that all Confidential Information stored electronically, digitally or magnetically by you and/or any such personnel is erased; and (c) cease all further use of Confidential Information. Your obligations under this clause do not apply to the extent otherwise required by law or by a court, regulatory authority or other competent authority.

12.1 If:

(a) you commit a material breach of the Contract and/or of any other contract between (1) you and (2) us or any of our affiliates (“Other Contract”). Without limitation to the foregoing, any breach by you of clauses 8.6, 9, 10.1, 10.4, 11, 13, 14, and/or 15 by you shall constitute a material breach incapable of remedy;

(b) you undergo a Change of Control;

(c) (i) you file a notice of intention to appoint administrators, make any composition or arrangement with all or any class of your creditors or become subject to an administration or government order or (being an individual or firm) become bankrupt or (being a company) go into liquidation or receivership (otherwise than a voluntary liquidation for the purposes of a bona fide scheme of solvent amalgamation or reconstruction); or (ii) a receiver, trustee, administrator or liquidator is appointed over any of your undertaking, property or assets; or (iii) you cannot pay (or have no reasonable prospect of being able to pay) your debts generally as they become due on a cash flow or balance sheet basis or otherwise, or suspend any payments to us or cease, or threaten to cease, to carry on your business in the normal course; or (iv) you take, suffer or are the subject of (or propose to take or are threatened with or any step is taken towards) any similar action, event or proceedings in any jurisdiction in consequence of debt; or (v) we reasonably consider that any of the above circumstances are likely to occur;

(d) you fail to pay any amount due under the Contract or any Other Contract when due and remain in default for 30 days or longer;

(e) you are in breach of either or both of the conditions set out in clause 9.1 and/or any of the events listed in clause 9.2 occurs; or

(f) you suffer a personal data breach or cybersecurity incident which we consider, in our sole discretion, has an impact on the arrangements under the Contract,

then without prejudice to any of our other rights or remedies: (A) we shall, by giving you written notice and without any liability to you, be entitled to terminate the Contract and/or (acting, where applicable, on such affiliate’s behalf) such Other Contract with immediate effect or to suspend any further supply of Products under the Contract or such Other Contract; (B) if any Products have been delivered but not paid for, all sums payable for such Products, and any other amounts payable by you to us under the Contract, shall become immediately due and payable (whether or not already invoiced by us); (C) if you have any Stored Products in Reserves, you must send to us, within one month of termination, details of the address to which you wish us to deliver such Stored Products. You must pay to us the cost of that delivery as set out in clause 2.6 and all Storage Charges for the period up until the date of delivery before we despatch the Stored Products to that address within one month of termination; and (D) if you do not send us delivery instructions or pay the cost of delivery and the Storage Charges in accordance with sub-clause (C), we may sell some or all of your Stored Products held in Reserves by the best method reasonably available and deduct from any proceeds of sale any costs we have incurred in connection with the sale plus Storage Charges for the period up until the date of sale and any other amounts owing by you, and we will then send any remaining proceeds to you if we can contact you at your last known address. If we cannot contact you to return the proceeds after making reasonable efforts to contact you, we shall be entitled to retain the proceeds.

12.2 Termination of the Contract (for whatever reason) shall not affect: (a) either party’s rights, obligations or remedies that have accrued before the date of termination; or (b) the coming into force or continuance in force of any provision of the Contract that is expressly or by implication intended to come into or continue in force by or after such termination.

12.3 We reserve the right, by giving you written notice and without any liability, to postpone delivery of any Products, to reduce the volume or scale of Products ordered by you or to cancel the Contract with immediate effect if any circumstances beyond our reasonable control make fulfilment of the order impractical, impossible or illegal.

13.1 Any sales, marketing, promotional activity or advertising carried out by you involving the Products shall comply in all respects with the Diageo Marketing Code (as amended from time to time, being available from us on request) (Diageo plc being our ultimate parent company), the Portman Group’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks (as revised from time to time and published on the Portman Group’s website), the Advertising Standards Authority Codes (as revised from time to time and published on the Advertising Standards Authority’s website), the Guidance for Traders on Pricing Practices (as revised from time to time and issued by the Chartered Trading Standards Institute) and any applicable laws, regulations and codes as shall exist from time to time.

13.2 In the event that you are a Designated Retailer for the purposes of the Groceries (Supply Chain Practices) Market Investigation Order 2009 (“2009 Order”), the Groceries Supply Code of Practice (as set out in Schedule 1 to the 2009 Order) (“Code”) is hereby incorporated by reference into: (a) the Contract; and (b) any other Supply Agreement (as defined in the 2009 Order) between you and us. To the extent that there is any inconsistency between the provisions of the Contract or such Supply Agreement and the provisions of the Code, the provisions of the Code shall prevail, provided that, for this purpose, any omission (whether deliberate or inadvertent) shall not, by itself, be construed as giving rise to an inconsistency.

14.1 You warrant and undertake to comply with your obligations under all applicable laws and regulations from time to time relating to data protection, privacy and information security including the General Data Protection Regulation (“GDPR”) meaning Regulation (EU) 2016/679 and any national implementing, amending or replacement legislation (the “Data Protection Legislation”).

14.2 To the extent that you receive personal data from us or share personal data (as defined in the Data Protection Legislation) with us in connection with this Contract and without prejudice to clause 14.1, you shall not act or omit to act in a manner that will or is likely to result in us breaching our obligations under the Data Protection Legislation.

14.3 Without prejudice to clause 14.2, if circumstances arise whereby you are acting as a data processor (as defined in the Data Protection Legislation) on our behalf, you shall promptly on request by us, execute written contractual commitments which meet the requirements of the Data Protection Legislation. Until such written commitments can be put in place this clause 14.3 shall be interpreted to give the closest possible effect to the Data Protection Legislation.

14.4 You shall notify us promptly (but in any event within 24 hours of becoming aware of it) in writing (and with a copy to csi@diageo.com), of any suspected, potential or actual cybersecurity or data incident, including any suspected, potential or actual accidental, unlawful or unauthorised destruction, disclosure, loss, alteration or access in relation to personal data processed on behalf of us or any of our affiliates, and provide us with details and information as we may reasonably require regarding the nature of the same and measures taken or proposed to be taken to address it.

14.5 You will provide reasonable assistance and cooperation as reasonably required by us in relation to personal data processed on behalf of us or our affiliates or any cybersecurity issue that affects or is reasonably likely to affect us and/or our affiliates.

You must ensure that you and any persons acting on your behalf do not commit any offence under the UK Bribery Act 2010 or the US Foreign Corrupt Practices Act 1977.

16.1 The Products are sold to you subject to these General Conditions (as same may be amended by us from time to time), which form part of every Contract that we enter into with you for the supply of Products.

16.2 These General Conditions and any Contract of which they form part constitute the entire agreement between us and you, with regard to the supply of the relevant Products. The Contract applies to the exclusion of any and all terms and/or conditions that may be submitted by or for you under any purchase order, specification or any other document (“Customer Conditions”), which shall, despite any contrary provisions of any Customer Conditions, be void and of no effect and shall not form any part of the Contract even if any such document: (a) is referred to in the Contract; or (b) formed any part of pre-contractual negotiations or correspondence between the parties. You irrevocably waive any right that you might otherwise have to rely on any Customer Conditions. No variation of the Contract shall have effect unless expressly agreed in writing duly signed by or for both you and us.

16.3 Despite clause 16.2 above, we may from time to time vary these General Conditions in such manner as we determine.

16.4 We may at any time without notice: (a) stop selling any of the Products, or (b) alter the ingredients, preparation and/or presentation of any of the Products.

16.5 If at any time any provision of the Contract is, becomes or is found to be illegal, invalid or unenforceable (in whole or in part), the legality, validity and enforceability of the remainder of the Contract shall not be affected.

16.6 We have undertaken to indemnify our parent companies for any damage that they may suffer as a result of conduct involving any breach by you of the Contract (including any breach of clauses 8 and 9).

16.7 We shall not be bound by any clerical or arithmetical errors in documents issued by us.

16.8 You may not, without our prior written approval, assign, charge or otherwise dispose of all or any part of the benefit of the Contract or sub-contract any or all of your obligations under it.

16.9 A person who is not a party to a Contract shall not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999.

16.10 The Contract and any related dispute or claim (contractual or non-contractual) shall be governed by, and construed in accordance with, English law. Each party irrevocably submits for all purposes of the Contract (including any such dispute or claim) to the exclusive jurisdiction of the courts of England.