Standard Terms and Conditions

Fourpure Limited
1. Definitions and Interpretation
1.1. In this Agreement, unless the context otherwise requires:
"Customer" has the meaning ascribed in the Key Terms.
"Customer Obligations" means the customer’s contractual obligations listed in Clause 6.1.
"End Date" has the meaning ascribed in the Key Terms.
Dispense Equipment” where applicable has the meaning ascribed in the Dispense Equipment Terms and Conditions.
Dispense Equipment Costs” has the meaning ascribed in the Key Terms.
"Event of Default" means any of the events set out in Clause 8.1.
"Force Majeure Event" means, in relation to a party, any event or circumstance which is beyond the reasonable control of that party and which that party could not take reasonable measures to prevent including, but not limited to, acts of God or the public enemy, flood, earthquake, storm, cyclone, fire, explosion, epidemic, war, embargo, riot, civil disturbance, any sabotage, confiscation or requisitioning of facilities, order or injunction of any duly constituted court of competent jurisdiction.
Incentives” means the Incentives detailed in the Incentive Schedule.
"Key Terms" means the key terms found at the front of this Agreement.
"IGC" has the meaning ascribed in the Key Terms;
IGC Affiliate” means In Good Company Brewing Limited, with company number 11065849, In Good Company Operations Limited, with company number 15274120, and/or Magic Rock Brewing Company Limited, with company number 07371022, and/or such other group companies as IGC may notify to the Customer in writing from to time.
"IGC Payment" means any payment including payments-in-kind to be made or credit to be given, by IGC to the Customer, including the Dispense Equipment Costs and any Incentives;
"Minimum Tap Commitment” has the meaning ascribed in the Key Terms;
"Options upon Default" has the meaning ascribed in Clause 8.2.
"Outlet" means the outlet(s) detailed in the Key Terms and includes any other location that the Customer may subsequently relocate to.
Products” means the products detailed in the Key Terms as may be amended on the terms set out in this Agreement;
"Start Date" has the meaning ascribed in the Key Terms.
"Term" has the meaning set out in clause 2.1.
"VAT" means value added tax or any equivalent tax chargeable in the United Kingdom or otherwise.
"Volume Commitment” has the meaning ascribed in the Key Terms;
1.2. In this Agreement, unless the context otherwise requires "change in control" means any direct or indirect change in control, or direct or indirect change in the legal or beneficial ownership of more than 50% of the Customer, whether by a single event or a series of events, over any period of time during the Term; and "control" includes where one or more persons, directly or indirectly, whether by the legal or beneficial ownership of shares, securities or other equity, the possession of voting power, by contract, trust or otherwise (a) has the power to appoint or remove the majority of the board of directors of the Customer; (b) controls or has the power to control the affairs of the Customer; or (c) is in a position to derive more than 50% of the benefit of the activities of the Customer. "dispose" includes any direct or indirect alienation, sale, grant, assignment, exchange, transfer, gift, dealing with, parting with possession of, or the granting of any option, right of first refusal or other right or interest, or any agreement for any of the same. "person" includes an individual, partnership, firm, company, body corporate, corporation, association, organisation, trust, estate, government or any agency thereof, municipal or local authority, and any other entity, whether incorporated or not (in each case whether or not having a separate legal personality).
2. TERM. This Agreement shall commence on the Start Date and terminate on the End Date, unless terminated earlier in accordance with the provisions of this Agreement ("Term").
3.1. The Customer shall purchase the Products from IGC for supply into the Outlet(s) on the terms set out herein.
3.2. IGC shall itself or through one of the IGC Affiliates manufacture and supply the Products to the Customer on the terms set out herein.
3.3. If IGC withdraws a Product from sale that product shall automatically be removed from the list of Products and IGC may at its discretion add in its place any other product that it supplies as a replacement or substitute for the withdrawn product.
3.4. IGC will provide reasonable notice of any increases to the list prices of the Products.
4. INCENTIVES. In consideration of the Customer complying with the Customer Obligations, IGC shall provide to the Customer the Incentives. In the event early termination of the Agreement, Customer shall refund to IGC the total value of the Incentives on a pro-rata basis, except where early termination results from Customer default, in which case the total value of the Incentives shall be refunded to IGC.
5.1. IGC warrants that on delivery the Products shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and within such specifications as relevant for the Product as may be provided to the Customer by IGC from time to time.
5.2. Subject to clause 5.3, if the Customer gives notice in writing to IGC within forty-eight hours of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1, the Customer shall provide IGC with a reasonable opportunity to examine such Products, whereupon IGC shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
5.3. IGC shall not be liable for the Products' failure to comply with the warranty set out in clause 5.1 if:
5.3.1. the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
5.3.2. the defect arises because the Customer failed to follow IGC’s oral or written instructions as to the storage, use and dispensation of the Products or (if there are none) good trade practice regarding the same; or
5.3.3. the defect arises because of wilful damage, negligence, or abnormal storage or working conditions.
5.4. Except as provided in this clause, IGC shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 5.1.
5.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.
5.6. These Conditions shall apply to any repaired or replacement Products supplied by IGC.
6. CUSTOMER OBLIGATIONS. The Customer shall, during the Term, ensure that:
6.1. It purchases the Products listed in the Key Terms from IGC throughout the Term for supply into the Outlet(s);
6.2. It complies with the Volume Commitment;
6.3. It complies with the Minimum Tap Commitment;
6.4. it does not actively supply Products purchased under this Agreement for secondary wholesale;
6.5. it pays for all purchases of Products under this Agreement at the time and in the manner which is, at the relevant time, consistent with the payment terms provided by IGC, including any terms of credit specified by IGC for the Customer, from time to time;
6.6. it always keeps within IGC’s agreed credit limit(s), as applicable;
6.7. it will not change its legal or trading name without first notifying IGC of its new name at least 21 days before the change takes effect; and
6.8. it complies with all other obligations set out in the Agreement.
(each a "Customer Obligation" together the "Customer Obligations").
7. RIGHT OF FIRST REFUSAL. The Customer shall offer IGC a first right of refusal to enter into a new agreement in relation to the Outlet and/or any other outlet which the Customer opens, and the terms of any new agreement shall provide IGC with at least the same, or substantially the same, benefits as this Agreement. Where this right of first refusal applies, the parties shall engage in good faith negotiations with a view to agreeing the terms to apply to any new agreement, such negotiations taking as their basis the terms of this Agreement. If the parties, each acting reasonably and in good faith, are unable to agree on the terms for any new agreement by the End Date then (and only then) may the Customer enter negotiations with another supplier.
8.1. The following shall amount to an Event of Default:
8.1.1. the Customer fails to make any payment it is obliged to make under this Agreement on or before the date it is due;
8.1.2. the Customer fails to comply with any of its obligations under this agreement, including for the avoidance of doubt the Volume Commitment and Minimum Tap Commitment;
8.1.3. the Customer breaches any of the other provisions of this Agreement and, if capable of remedy, fails to remedy the breach within ten working days after written notice has been given by IGC (time being of the essence);
8.1.4. for any reason the Customer ceases to hold a valid liquor licence, any other licence required for the successful operation of the Outlet(s), or otherwise is or is likely to become unable to perform its obligations under this Agreement;
8.1.5. the Customer transfers, disposes, assigns, ceases trading or sub-lets its interest (or advises of its intention to do so) in the/any Outlet or there is a change in control of the Customer before the End Date and the Agreement is not novated as clause 12.3;
8.1.6. any security becomes enforceable over any asset of the Customer or a trustee, receiver, administrator or similar official is appointed in respect of the Customer or any of its assets, or any asset of the Customer becomes subject to distress or other execution, or a judgment is obtained against the Customer whether in the United Kingdom or otherwise;
8.1.7. the Customer ceases, or threatens to cease, to carry on its business, becomes insolvent, is unable to pay its debts when they fall due, or is presumed unable to pay its debts under any law, or takes any step to benefit any of its creditors in expectation of insolvency, or stops or threatens to stop payments generally; or
8.1.8. it comes to IGC’ attention that the Customer has made a false statement or misrepresentation to IGC or has failed to disclose any material fact in relation to the negotiations or entry into this Agreement.
8.2. If for any reason an Event of Default occurs, IGC may, without prejudice to any other rights or remedies it may have and in its sole discretion exercise one or more of the following “Options upon Default”:
8.2.1. defer, cancel, or suspend payment of any IGC Payment or any instalment thereof;
8.2.2. require repayment of any IGC Payment or any previous instalments thereof made to the Customer;
8.2.3. terminate this Agreement with immediate effect by giving written notice to the Customer, in which event any outstanding monies owed by the Customer to IGC under this Agreement will become immediately due and payable;
8.2.4. sue for damages; and
8.2.5. sue for equitable relief.
8.3. The Customer acknowledges and agrees that IGC relies upon both the Volume Commitment and the Minimum Tap Commitment and that any Incentives that IGC provides to the Customer under this Agreement have been calculated on the basis that the Volume Commitment and Minimum Tap Commitment are met on an ongoing basis. Thus, failure to meet either the Volume Commitment or the Minimum Tap Commitment shall be an Event of Default and IGC shall be entitled to exercise any one or more of its Options upon Default.
9.1. The Customer indemnifies IGC from and against all costs, claims, damages, losses, liabilities or expenses (including legal expenses on a solicitor client basis) incurred by IGC as a result of any action, demand, claim or proceeding against IGC arising directly or indirectly out of, or in connection with, any act or omission of the Customer, a director or any employees or agents of the Customer, or any breach of the terms of this Agreement by the Customer.
9.2. Nothing in this Agreement limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, fraud, or fraudulent misrepresentation.
9.3. Subject to clause 9.2, IGC’s total liability under the Agreement shall not extend to any indirect or consequential losses incurred by the Customer and in any event shall not exceed the price of Products purchased in the applicable order.
9.4. This clause 9 shall survive termination of the Agreement.
10.1. Where either party is unable, either wholly or in part, to carry out any obligation under this Agreement due to a Force Majeure Event, that party shall (a) as soon as practicable, give the other party notice of the occurrence of that Force Majeure Event, and (b) use all reasonable endeavours to remedy the effect of that Force Majeure Event and to continue to perform its obligations under this Agreement.
10.2. The obligations under this Agreement of a party affected by a Force Majeure Event shall be suspended to the extent that they are affected by any such Force Majeure Event. For the avoidance of doubt, any Customer obligations to repay monies owed to IGC shall not be suspended by reason of the Force Majeure Event.
10.3. IGC shall not be in any way liable to the Customer for any failure to supply any Products ordered by the Customer where that failure is due to a Force Majeure Event affecting either IGC or the Customer. Such failure or delay by IGC to supply Product to the Customer shall not affect Customer’s obligations to perform the Customer Obligations, except to the extent that such failure or delay directly prevents the Customer from doing so.
10.4. If, by reason of a Force Majeure Event, the delay or non-performance of a party’s obligations hereunder continues for more than 30 consecutive days, or 30 or more days in aggregate over a 12 month period, the party not relying on the Force Majeure Event may terminate this Agreement by one month's written notice to the other party.
11.1. Any policy of insurance held by the Customer under this Agreement shall acknowledge IGC's interest in the insured property (including any interest arising under this Agreement and under any security by the Customer in favour of IGC).
11.2. The Customer shall not do or permit or suffer to be done anything which could adversely affect any relevant insurance policy.
11.3. If required by IGC at any time, the Customer will provide IGC with evidence of payment of insurance premiums.
11.4. If, as a result of a Force Majeure Event (or otherwise) the Outlet is damaged or destroyed such that the Customer is unable to operate from that Outlet and the Customer receives an insurance pay out or other compensation and the Customer uses that money to reopen the Outlet, or establish a new outlet wherever located, IGC shall have first right of refusal to negotiate a trading arrangement, on substantially the same terms as this Agreement, in respect of that new or reopened outlet. If the parties cannot agree to a new agreement, the terms of this Agreement shall continue to apply in respect of that new or reopened outlet, for a period equal to the amount of time which was remaining in the Term when the Force Majeure Event (or other event) caused the damage to, or destruction of, the Outlet.
12.1. Save as set out in clause 12.2, neither party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
12.2. IGC may, after having given at least 10 working days prior written notice to the Customer, assign or subcontract any or all of its rights and obligations under this agreement to an affiliate, whereupon the Customer agrees to enter into any other document including novation which IGC may reasonably require it to enter to effect this clause.
12.3. In the event of a change of control of the Customer, or the Customer sells, rebrands or restructures any part of its business, Customer will use best endeavours to ensure that this Agreement is novated by the new operators of the Outlet.
13. COMPETITION COMMITMENT. Both parties shall comply with the requirements of UK and EU competition laws. Specifically, neither party shall engage in any conduct which has the object, or is likely to have the effect, of preventing, distorting, or restricting competition in any market in which a party or its customers operate; parties shall neither disclose nor request commercially sensitive information about the others’ business activities and commercial strategies; and each party takes independent decisions about its respective business activities.
14. DEFAULT INTEREST. Without prejudice to the other rights, powers and remedies of either party under this Agreement, if any money owing by the Customer to IGC pursuant to this Agreement remains unpaid for 10 working days after the due date for payment, IGC may at its discretion apply interest to the amount owing at a rate of 4% above the base rate of the Bank of England, computed on a daily basis from, but excluding, the due date until payment in full of such money.
15. CONFIDENTIALITY. The Customer shall not disclose the existence of this Agreement or its contents in any manner whatsoever to any person other than its officers and professional advisers except to the extent required by law, or that the parties otherwise agree in writing, or that is necessary to obtain the benefit of, or to carry out the obligations under, this Agreement. The provisions of this clause 15 shall survive the termination or expiration of this Agreement.
16. NOTICES. All notices and other communications provided for under this Agreement shall be mailed by registered post or personally delivered to the Customer or IGC at their respective addresses specified at the front of this Agreement or sent as a PDF attachment to the email address provided by each party from time to time. Notices and communications shall, when mailed, be deemed to have been received two working days after posting, and where emailed, be deemed to arrive the next working day after transmission.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Agreement and supersedes and cancels any previous agreement, understanding or arrangement relating thereto whether written or oral.
18. GOVERNING LAW. This Agreement and the transactions contemplated by this Agreement are governed by the law in force in England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.
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