Terms and Conditions

STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS

NEW WAVE (SCOTLAND) LIMITED

 1              Definitions and Interpretation

1.1          In these Conditions and each Contract the following words have the following meanings:

"Business Day" means any day between Monday – Friday inclusive (but excluding bank or public holidays in Scotland).

"Conditions" means the terms and conditions set out in this document (as may be amended from time to time in accordance with clause 13.9).

"Container" means any article for the containment and/or transportation of beer, including, kegs, casks, returnable bottles and cases (but excluding non-returnable bottles and cans).

"Contract" means a contract between the Seller and the Customer for the sale and purchase of Goods in accordance with and incorporating these Conditions which has come into force in accordance with clause 2.3.

"Customer" means the person who enters into a Contract with the Seller.

"Equipment" means any articles or equipment provided to the Customer by the Seller in support of or in connection with the Goods but which do not form part of the Goods themselves. Examples may include beer dispense systems, cellar cooling equipment, Containers and/or point of sale and promotional material.

"Force Majeure" means any cause affecting the performance by the Seller (and/or by any supplier, sub-contractor or representative of the Seller) of its obligations under or in connection with any Contract arising from acts, events or omissions (whether or not reasonably foreseeable by the Seller (and/or by its suppliers, sub-contractors or representatives ) as at the date of any Contract) not within its reasonable ability (and/or within the reasonable ability of any of its affected suppliers, sub-contractors or representatives) to control. Such events include fire, flood, drought, earthquake, natural disaster, extreme, onerous or unusual weather conditions, general market shortages of Goods or raw materials, Product Recalls, illness or disease (whether or not declared as an epidemic or pandemic and including Covid-19 and all variant strains thereof), acts of terrorism, riot or other civil disorder, delays in shipping channels and/or industrial disputes.

"Goods" means the goods (or any part of them) set out in an Order.

"Order" means any order for the Goods submitted by the Customer to the Seller whether verbally, via the Website, in in any purchase order form or in any other written request for Goods which is issued by or on the behalf of the Customer (but excluding in any of the foregoing cases any terms and conditions which the Customer may purport to apply as part of any such order including via the use of any terms and conditions as set out or referred to in any purchase order form or other written order).

"Product Recall" means a decision taken to recall any Goods once supplied to a Customer due to information or reasonable suspicion of the Seller or any of its suppliers that such Goods may be unsafe, defective, or in any way not compliant with the warranty under clause 5.1.

"Seller" means New Wave (Scotland) Limited (company number SC520558) who trade as New Wave Beer and whose registered office is 60 Constitution Street, Edinburgh, Scotland, EH6 6RR.

"Website" means any website from time to time operated by the Seller including www.newwave.beer.

1.2          In these Conditions and each Contract, a reference to:

(a)           a person includes a natural person, firm, partnership, corporate or unincorporated body (whether or not having separate legal personality);

(b)           a party includes its personal representatives, successors or permitted assigns;

(c)           a statute or statutory provision is a reference to such statute or provision as amended or re-enacted.  A reference to a statute or statutory provision includes any subordinate legislation made under the statue or statutory provision, as amended or re-enacted;

(d)           any phrase introduced by the terms "including", "include", "in particular", or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

(e)           a reference to "writing" or "written" includes emails but excludes fax; and

(f)            headings are used for convenience and shall not affect construction or interpretation.

2              Basis of Contract

2.1          These Conditions apply to each Contract to the exclusion of any of the terms that the Customer seeks to impose or incorporate (whether through the use of any standard form documentation or otherwise) or which are implied by trade, custom, practice or cause of dealing.

2.2          Each Order constitutes an irrevocable offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring the terms of the Order are complete and accurate.

2.3          The Seller is under no obligation to accept any Order and may decline to accept any Order without the need to give reason. An Order shall only be deemed to be accepted (at which point a Contract for the sale and purchase of the applicable Goods incorporating and subject to these Conditions shall come into force) on the earlier of the Seller:

(a)           issuing a written acceptance of the Order in question (which may be provided via email and/or via any Website in the case of Orders submitted via a Website) or otherwise unconditionally communicating its acceptance of such Order; or

(b)           commencing or attempting to commence delivery of any Goods comprised within an Order or otherwise the Seller doing any act consistent with the acceptance of the Order in question (including the Seller placing orders with its own suppliers for any Goods comprised within the Order in question).

Once a Contract has come into force in accordance with this clause 2.3 that Contract cannot thereafter be cancelled or amended by the Customer and must be paid for by the Customer in full in accordance with these Conditions. Without prejudice to the generality of the foregoing, no Contract shall be deemed conditional upon any particular event occurring and/or upon any particular event occurring on any particular date.

2.4          Each Contract constitutes the entire agreement between the parties relating to the sale and purchase of the Goods in question (and if applicable the provision of any Equipment) and supersedes all previous presentations made and/or agreements, negotiations and discussions between the parties relating to the same.  At the time each Contract comes into force the Customer shall be deemed to acknowledge that it has not relied upon any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract in question. The foregoing shall not act so as to limit or exclude any liability of the Seller for fraud or fraudulent misrepresentation.

2.5          Any samples, descriptive matter, or advertising produced by the Seller (including on any Website) and any illustrations contained in the Seller’s catalogues, brochures or any Website are produced for the sole purpose of giving an approximate idea of the Goods or Equipment described in them. They may be amended or varied by the Seller from time to time and shall not form part of any Contract nor have any contractual force.

2.6          A quotation for the Goods given by the Seller shall not constitute an offer which is capable of acceptance by the Customer.  Any quotation may be withdrawn or varied by the Seller at any-time and in any event shall automatically lapse 30 days from the date of issue.

3              Amendments

3.1          The Seller may amend the specification of any Goods after a Contract has come into force in order to comply with any applicable statutory or regulatory requirements or for any other reason, provided that in the latter case the variation in question does not result in any material adverse change to the specification in existence as at the date the Contract in question came into force.

4              Delivery

4.1          The Seller shall ensure that:

(a)           each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, any relevant Customer reference numbers as detailed on the applicable Order, the type and quantity of the Goods (including the code number of the Goods if applicable), any special storage instructions and, if Goods which are the subject of the Contract are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b)           if the Seller requires the Customer to return any Equipment to the Seller, that fact is clearly stated upon the delivery note.  The Customer shall make any such Equipment available for collection at such times as the Seller shall reasonably request and such returns shall be at the Seller’s expense. If the Customer fails to make any Equipment available for collection in accordance with this clause 4.1(b) then the Customer shall reimburse the Seller on request for any costs and expenses reasonably and properly incurred by the Seller in recovering and/or replacing such Equipment.

4.2          The Seller shall deliver the Goods to the Customer’s premises or such other location as the parties may agree (which may include the Seller agreeing to make the Goods available for collection by the Customer from the Seller’s premises) ("Delivery Location") on a Business Day to be notified by the Seller to the Customer ("Delivery Date"). If the Customer fails to accept or collect (as applicable) delivery of any Goods when the Seller first attempts to make delivery then:

(a)           risk of loss or damage occurring to the relevant Goods shall be deemed to pass to the Customer at the time when the Seller first attempted to make delivery and for the purposes of clauses 6.1 and 7.4 the Goods in question shall be deemed to have been delivered by the Seller at that time: and

(b)           the Customer shall reimburse the Seller on request for any costs and expenses reasonably and properly incurred by the Seller in storing the Goods in question and attempting re-delivery.

4.3          If the Seller is to deliver any Goods then in addition to the price of the Goods in question the Customer shall pay for the costs of delivery incurred by the Seller which shall be as quoted by the Seller and invoiced in addition.

4.4          Delivery of the Goods shall be deemed completed upon the Goods arrival at the Delivery Location regardless of whether or not the Customer then accepts or collects (as applicable) such delivery.

4.5          The Delivery Date or any other dates quoted for delivery are approximate only and the time of delivery is not of the essence.  Without prejudice to the generality of the foregoing or any other provision of these Conditions, the Seller shall not be liable for any delay or failure in delivery of the Goods that is caused by the Customer’s failure to provide the Seller with adequate delivery details.

4.6          The Seller may deliver the Goods by instalments/on a piecemeal basis, which shall be invoiced and paid for separately.  Each instalment shall constitute a separate Contract.  Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.7          The Seller may deliver up to more or less than 5% of the volume of Goods comprised within any Order and the Customer shall not be entitled to reject any delivery on the basis of any difference in volume within such tolerances. In such circumstances the price shall be adjusted on a pro-rata basis to reflect the actual volume of Goods delivered.

5              Quality and Warranty Claims

5.1          The Seller warrants that upon delivery and thereafter until the expiry/best before date stated on the packaging of the Goods (subject to those Goods being stored in appropriate conditions) the Goods shall:

(a)           conform in all material respects with their description, and

(b)           be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

5.2          The Customer shall:

(a)           conduct a thorough visual inspection of any Goods on delivery and shall notify the Seller in writing of any damage to their packaging or other apparent failure of the Goods to comply with the warranty set out at clause 5.1 on delivery which would be reasonably apparent from a thorough visual inspection on delivery within three Business Days of the date of delivery; and/or

(b)           notify the Seller in writing of any failure of any Goods to comply with the warranty set out at Clause 5.1 which would not be reasonably apparent from a thorough visual inspection on delivery within three Business Days of the date on which the Customer first became aware (or ought reasonably to have become aware) of the failure in question.

            Subject to the foregoing the Goods shall be deemed accepted by the Customer three Business Days following the date of delivery.

5.3          If the Customer makes any claim under the warranty set out at clause 5.1 which the Seller (acting reasonably and in good faith) considers to be valid then the Seller shall (at its discretion) as soon as reasonably practicable either replace the Goods (or the affected part of the Goods) or refund to the Customer the price actually paid by it to the Seller for the Goods. Any such replacement Goods shall then be subject to the warranty set out at clause 5.1.

5.4          The Customer shall on request:

(a)           permit the Seller to access any premises where any Goods which are the subject of a warranty claim are located for the purposes of inspecting and testing those Goods; and/or

(b)           promptly return to the Seller (at the Customer’s expense) any Goods which are the subject of a warranty claim.

5.5          The Customer shall on demand reimburse the Supplier for any reasonable costs and expenses which are incurred by it in investigating any warranty claim made by the Customer which is subsequently found to be invalid for any reason.

5.6          Compliance by the Supplier with its obligations under this clause 5 shall represent the Customer’s sole and exclusive remedy (and the Supplier’s only liability) in respect of any failure of the Goods to comply with the warranty set out at clause 5.1 (including as a result of any Product Recall) subject at all times to clause 9.1.

5.7          The terms implied by sections 13 – 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from any Contract.

5.8          The Seller shall have no liability or responsibility (whether under any Contract or otherwise) for any failure of the Goods failure to comply with the warranty set out in clause 5.1 if:

(a)           the Customer makes any further use of such Goods after become aware of any potential failure of those Goods to comply with that warranty;

(b)           any defect arises because the Customer failed to follow the Seller’s oral or written instructions as to the storage of the Goods and in any event, good trade practice relating to the same;

(c)           the Customer alters any Goods without the written consent of the Seller;

(d)           any defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; and/or

(e)           the Goods differ from their description as a result of changes made to them by the Seller’s supplier and/or in line with any applicable statutory or regulatory requirements.

5.9          In the event of a Product Recall the Seller shall notify the Customer as soon as reasonably practicable. Upon receipt of any such notice the Customer shall:

(a)           immediately cease further sales or supplies of any Goods subject to the Product Recall; and

(b)           make any such Goods available for collection by the Seller (at the Seller’s expense) at a reasonable date and time notified by the Seller to the Customer.

5.10        In the event of a Product Recall, then subject to compliance by the Customer with clause 5.9 the Seller shall (at its discretion) as soon as reasonably practicable either replace the Goods (or the affected part of the Goods) or refund to the Customer the price actually paid by it to the Seller for the Goods. Any such replacement Goods shall then be subject to the warranty set out at clause 5.1.

5.11        The provisions of this clause 5 shall also apply (with the necessary amendments first deemed to have been made) in respect of any Equipment.

6              Title and Risk

6.1          The risk in the Goods and any Equipment (if applicable) shall pass to the Customer upon completion of delivery or deemed delivery under clause 4.2(a) (as applicable).

6.2          Title to Goods shall not pass to the Customer until the Seller has received payment in full (in cash or cleared funds) for:

(a)           such Goods; and;

(b)           all other sums which are or which become due to the Seller from the Customer under any other Contracts in force from time to time.

            For the avoidance of doubt title to any Equipment shall at all times be retained by the Seller and shall not pass the Customer regardless of any payments made for Goods.

6.3          Until title to the Goods has passed to the Customer in accordance with clause 6.2 or 6.3(f)(ii) and at all times in respect of any Equipment (if applicable), the Customer shall:

(a)           hold such Goods and any Equipment (if applicable) on a fiduciary basis as the Seller's bailee;

(b)           store such Goods and any Equipment (if applicable) separately from all other goods held by the Customer so that they remain readily identifiable as the Seller's property. In the event that any Goods shall be in any way mixed, compounded, or entwined with the property of a third party or parties then the product or products thereof shall be deemed to be held in common with such third party or parties. Equipment may not be compounded or entwined with the property of a third party or parties without the prior written consent of the Seller;

(c)           not remove, deface or obscure any identifying mark or packaging on or relating to such Goods and any Equipment (if applicable);

(d)           maintain such Goods and any Equipment (if applicable) in satisfactory condition and keep insured on the Seller's behalf for their full price against all risks with an insurer that is reasonably acceptable to the Seller. The Customer shall obtain an endorsement of the Seller's interest in the Goods and any Equipment (if applicable) on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow the Seller to inspect such Goods and any Equipment (if applicable) and/or the insurance policy;

(e)           immediately notify the Seller of any damage to the Goods and any Equipment (if applicable) and hold any insurance monies received in trust for the Seller absolutely. In the event that a claim is to be made under the Customer’s insurance, the Seller may, at the Seller’s sole discretion, conduct negotiations and effect a settlement with the insurers in place of the Customer. The Customer at all times irrevocably authorises the Seller to collect any insurance monies from the insurers. The Seller may apply any insurance monies as the Seller shall see fit;

(f)            subject to clause 6.3(g) the Customer may sell or use the Goods on an arm’s length basis in the ordinary course of its business (but not otherwise) before title passes in accordance with clause 6.2. However, if the Customer resells the Goods before that time then:

(i)            it does so as principal and not as the Seller’s agent, and

(ii)           title to the Goods shall pass from the Seller to the Customer immediately before the time at which resale by the Customer occurs.

(g)           at the Customer’s own expense immediately return the Goods and/or any Equipment (if applicable) to the Seller or its authorised representatives at the Seller’s request. In any event, the Customer’s right of possession of any Goods in respect of which title has not passed to it and/or the right to resell the same pursuant to clause 6.3(f) and any Equipment (if applicable) shall immediately end in the event that the Customer suffers any event as detailed in clause 8.2. The Customer shall notify the Seller immediately should it suffer any such event and shall also inform any receiver, manager, administrative receiver or similar who may be appointed with respect to any assets of the Customer that the Goods and any Equipment (if applicable) belong to the Supplier and are not assets belonging to the Customer.

6.4          The Customer shall allow the Seller or its authorised representatives on request access any premises where any Equipment (if applicable) and/or Goods in respect of which title has not passed to the Customer may be stored (or in the case of any premises not under the control of the Customer, shall procure that such access is granted for the Seller or its authorised representatives) for the purposes of inspecting such Equipment and those Goods and verifying the compliance by the Customer with its obligations under clause 6.3 and/or where the Customer’s right of possession of such Equipment and/or those Goods has ended, for the purposes of recovering such Equipment and/or those Goods.

6.5          The Seller shall be entitled to maintain an action for the price of the Goods notwithstanding that title to the same shall not have passed to the Customer.

7              Price and Payment

7.1          The price of the Goods shall be the price set out in the applicable Contract, or, if no price is set out, the Seller’s published list price in force as at the date of delivery.

7.2          The Seller may at any-time (including after a Contract has come into force) increase the price of any Goods as reasonably required to reflect any increase in the cost of the Goods that is due to:

(a)           increases in taxes, duties, surcharges, tariffs and/or levies and/or the introduction of any new taxes, duties, surcharges, tariffs and/or levies; and/or

(b)           any factors beyond the Seller’s reasonable control.

7.3          All Prices and other amounts payable to the Seller are stated exclusive of VAT which shall be paid by the Customer in addition at the rate from time to time in force (subject to the provision of a VAT invoice by the Seller).

7.4          Unless otherwise specified in a Contract, the Seller may invoice the Customer for the Goods on or at any time after delivery or deemed delivery in accordance with clause 4.2(a) (as applicable).

7.5          Unless the Customer has a Credit Account (as defined in clause 12.1), the Customer shall pay each invoice in full at or prior to delivery or deemed delivery in accordance with clause 4.2(a) (as applicable) of the Goods in question.

7.6          If the Customer has a Credit Account then subject to any variation of that Credit Account in accordance with clause 12.2, the Customer shall pay in full all invoices by the 15th day of the month following the month of invoice (unless paying by Direct Debit in which instance the payment shall be made by the 28th day of the month following the month of invoice).

7.7          Time of payment shall be of the essence.

7.8          If the Customer fails to pay any sum due from it under any Contract (including the price of the Goods) by the due date for payment then without prejudice to any other rights or remedies available to it (whether under the applicable Contract or otherwise) the Seller shall be entitled to charge interest on such amount together with the cost of recovery in each case, in accordance with the Late Payment of Commercial Debt (Interest) Act 1998.

7.9          The Customer shall pay all amounts due under each Contract (including the price of the Goods) in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part.  The Seller may at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Customer against any amount payable by the Seller to the Customer.

7.10        All sums payable by the Customer to the Seller under any Contract (including the price of the Goods) shall become immediately due and payable by the Customer upon any early termination of the Contract in question.

8              Termination

8.1          If the Customer:

(a)           becomes subject to any event as detailed in clause 8.2;

(b)           should the Supplier reasonably believe that the Customer is about to become subject to any event as detailed in clause 8.2; and/or

(c)           should any amount due to be paid by the Customer to the Seller under any Contract be overdue,

            then the Seller may in any such case (and without prejudice to any other rights or remedies available to it whether under any Contract or otherwise) suspend without notice any or all further deliveries of Goods under any or all Contracts and/or terminate on notice any or all outstanding Contracts in either case, without liability to the Customer.

8.2          For the purposes of clauses 6.3(g), 8.1(a) and 8.1(b), the relevant events are;

(a)           the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debt, or, being a company, is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or, the Customer being an individual, is deemed either unable to pay his or her debts or as having no reasonable prospects of so doing, in either case, within the meaning of Section 268 of the Insolvency Act 1986, or, in the event the Customer is a partnership, has any partner to whom any of the foregoing apply;

(b)           the Customer commences negotiations with all or any class of its creditors with a view to re-scheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

(c)           being a company, a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding-up of a Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(d)           being an individual, the Customer is the subject of a bankruptcy petition or order;

(e)           being a company an application is made to Court, or an order is made, the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer, or an administrative receiver is appointed;

(f)            a creditor of the Customer attaches or takes possession of, or a distress, execution, sequestration, or other process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 days;

(g)           a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

(h)           the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;

(i)            the Customer’s financial position deteriorates to such an extent that in the Seller’s opinion the Customer’s capability to adequately fulfil its obligations under any Contract has been placed in jeopardy;

(j)            being an individual, the Customer dies, or by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or

(k)           the Customer suffers or undergoes any similar or analogous event to any of the foregoing in any jurisdiction.

8.3          The Seller may terminate any or all outstanding Contracts without liability to the Customer if the Customer is in breach of any of its obligations under any Contract and, in the case of a breach which is capable of remedy, the Customer fails to remedy the same within 5 days of receipt of notice from the Supplier requesting it to do so.

8.4          Termination of any Contract, howsoever arising, shall not affect each party’s rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of any Contract shall also continue in full force and effect.

9              Limitation of Liability

9.1          Nothing in these Conditions nor any Contract shall limit or exclude the Seller’s liability for:

(a)           death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)           fraud or fraudulent misrepresentation;

(c)           breach of the terms implied by Section 12 of the Sale of Goods Act 1979;

(d)           defective products under the Consumer Protection Act 1987; and

(e)           any other liability which cannot lawfully be limited or excluded.

9.2          Subject to clause 9.1:

(a)           the Seller shall under no circumstances be liable to the Customer, whether in contract (including under any indemnity), tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of use, loss of  anticipated profit, loss of contracts, loss of revenue, loss or damage to goodwill or brand, loss of anticipated savings, damage to reputation; and/or any consequential, special or indirect loss or damage in any case, regardless of whether or not the Seller was aware or had been made aware (or ought reasonably to have been aware) at the time of the relevant Contract coming into force of the risk that such loss or damage might occur; and

(b)           the Seller’s total liability to the Customer in respect of all losses, costs, damages and expenses arising under or in connection with a Contract, whether in contract (including under any indemnity), tort (including negligence), breach of statutory duty or otherwise shall in no circumstances exceed the price of the Goods paid by the Customer to the Seller under the Contract in question.

10           Force Majeure

10.1        The Seller shall not be liable for any failure or delay in complying with any of its obligations under any Contract if the failure or delay in question is attributable to any Force Majeure Event.

11           Customer’s Obligations

11.1        The Customer is prohibited from and undertakes not to sell any Goods on a wholesale basis (or transfer any Goods by way of any form of exchange on a wholesale basis) to any third party for the purpose of re-sale or supply by or on behalf of such third party.

11.2        The Customer shall keep confidential all details of any terms agreed with the Seller in relation to the price paid under any Contract.  The Customer may only provide the same to any third party if the same shall be:

(a)           the Customer’s auditors, insurers and/or lawyers on terms which preserve confidentiality; or

(b)           pursuant to an order of a Court of competent jurisdiction, or pursuant to any proper order or demand made by any competent authority or body with the legal or regulatory power to require such a disclosure.

11.3        The Customer shall ensure that any employee or other representative of the Customer placing any Order has the authority to do so on the behalf of the Customer. The Seller shall be entitled to regard any such employee or other representative placing an Order with Seller as having been so authorised by the Customer without the need for the Seller to make further enquiry.

11.4        The Customer undertakes not to do anything or act in any way which may directly or indirectly harm the Seller, affect the Seller’s reputation, or cause the Seller financial loss.

12           Credit Arrangements

12.1        The Seller may, at the Seller’s sole discretion from time to time, allow the Customer credit for Goods supplied ("Credit Account").

12.2        The Seller may on notice suspend, vary or withdraw the Customer’s entitlement to a Credit Account at any time at the Seller’s sole discretion.

12.3        In considering whether to offer and/or maintain any Credit Account, the Seller may undertake all such lawful checks and financial assessments as the Seller deems necessary from time to time to establish and monitor the Customer’s creditworthiness which checks and assessments the Customer shall be deemed to consent to should it request a Credit Account. Where legally required the Seller shall notify the Customer in advance if it intends to undertake any such checks.

13           Miscellaneous

13.1        The parties are with respect to each other independent contractors and nothing in these Conditions nor in any Contract and no actions taken by the parties under any these Conditions or any Contract shall be deemed to constitute any agency, partnership, association, joint venture or other co-operative enterprise between the parties.

13.2        The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights and/or obligations under any Contract.

13.3        The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights and/or obligations under any Contract without the prior written consent of the Seller.

13.4        Any notice or other communication given to a party under or in connection with a Contract shall be in writing.  A notice or other communication shall be deemed to have been received if sent by pre-paid first class post or recorded delivery at 9.00 am on the second Business Day after posting or, if sent by email, one Business Day after transmission.  The provisions of this clause 13.4 shall not apply to the service of any proceedings or other documents in any legal action.

13.5        If any Court or competent authority finds that any provision of a Contract (or any part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of that Contract shall not be affected.

13.6        If any invalid, unenforceable or illegal provision of a Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

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

13.8        A waiver of any right or remedy under a Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.  No failure or delay by a party to exercise any right or remedy provided under a Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.  No single or partial exercise of such right or remedy shall preclude or restrict any further exercise of that or any other right or remedy.

13.9        The Seller reserves the right to amend or vary these Conditions at any-time without the need to provide prior or specific notice to the Customer. The version of these Conditions which is applicable to and incorporated into a Contract shall be the version in force as at the date the Contract in question came into force. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Seller.