GENERAL CONDITIONS OF SALE AND DELIVERY The Main Rum Company Ltd.
These General Terms and Conditions apply to and form an integral part of all offer, confirmations, agreements regarding the purchase of all Products from The Main Rum Company Limited (“these Terms”), a company registered in the United Kingdom under number 1848086, whose registered address is at 46 Hamilton Square, Birkenhead CH41 5AR, United Kingdom.
1. Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
1.1 “Buyer” means the individual, sole trader, firm, company, or corporate body placing an order for the Product with Vendor or requesting information from Vendor.
1.2 “Party” means either Vendor or Buyer as the context so requires, and Parties shall be construed accordingly.
1.3 “Product” means bulk cargoes of spirits called Rum, Batavia Arrack, or otherwise, and to any other goods and/or services delivered and any work performed by Vendor.
1.4 “Vendor” means “The Main Rum Company Ltd” or “MRC” and specialises in the importation, blending and sale of Bulk Rum and sugarcane distillates, in particular Premium Aged Rums in casks, from various origins and distilleries around the world. E&A Scheer B.V., an Affiliate of Vendor specialises in importing, blending and trading Rum, Batavia Arrack and Cachaça in bulk. E&A Scheer B.V., is a limited liability company registered in the Netherlands, with a principal place of business at Deccaweg 22,1042 AD Amsterdam, The Netherlands. “Affiliate” means, in respect of MRC, any entity controlling, under the common control with or controlled by MRC and “control” shall mean direct or indirect beneficial ownership of more than 50% of the shares conferring the right to vote at a general meeting (or its equivalent) of such entity or alternatively to appoint the majority of the directors or other governing body of such entity.
1.5 If a translation of these Terms is available, the Dutch text or its interpretation shall prevail in the event of a conflict between the two versions.
2. Tenders, Prices, and Documents
2.1 All offers, tenders, and quotations submitted by Vendor shall be without any obligation and is valid for the period stated therein.
2.2 Vendor is entitled to accept and reject Buyer’s orders at its sole discretion. A legally binding agreement between the Parties shall be deemed created after Vendor has provided written confirmation of an order placed by Buyer (“Order Confirmation”), or has commenced the execution of that order. This agreement shall incorporate and be subject to these Terms. (“Agreement”).
2.3 Vendor may, at its sole discretion, accept any changes proposed by Buyer after submitting its order or after concluding the Agreement, for example concerning delivery. All costs with those changes shall be for Buyer’s account.
2.4 Prices are subject to change depending on the volume of the Product. Vendor may charge the price according to its price list prevailing at the time of delivery. Vendor reserves the right to increase the price for accepted orders, if the cost of the Product increases due to factors beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates. Vendor shall advise Buyer of any increase in writing.
2.5 Any promotional or marketing brochures, price lists, and other documents issued by Vendor concerning the Product are subject to change without notice and do not constitute offers to sell the Product which are capable of acceptance. Vendor reserves the right to make any corrections to these documents without liability and notice.
2.6 Prices stated in offers, tenders, and quotations shall be exclusive of VAT, taxes, excise duties, levies, and import duties (European or otherwise). Vendor may pass on to Buyer any new taxes, levies and amendments or increases of taxes, excise duties, levies, or import duties (Dutch, European, or otherwise) payable over the purchased Product and/or its delivery. Buyer shall reimburse Vendor for payment of any excise duties and levies owed over the delivered Product.
2.7 If excise duty laws require the presentation of documents for the discharge of customs or transport documents of Vendor, Buyer shall provide Vendor with those documents within fifteen days of receipt of the Product delivered. Buyer shall keep documentary evidence of the provision of these documents for at least two years.
2.8 At the time of delivery of the Product, Buyer shall have the accompanying administrative documents duly signed by the competent customs or other authorities and return them to Vendor not later than fifteen days after signature. Vendor shall not accept liability for damage and costs occasioned by the late dispatch of such documents.
2.9 Buyer shall indemnify Vendor against any excise duty liabilities, costs, and damages that Vendor may incur due to the document clearance procedure or storage by or on behalf of Buyer or if Buyer fails to fulfill the obligation described in this Article 2.
3. Invoicing and Payment
3.1 Vendor shall invoice Buyer entity that placed the order. If the shipping and invoicing addresses are in different countries, Vendor shall invoice with 0% VAT, and Buyer shall invoice the applicable local entity to which Vendor delivers the Product (shipping address) with the local VAT of the country where the Product is delivered (shipping address). Buyer shall defend, save, hold harmless, indemnify and compensate Vendor from and against any claims (including penalties) imposed or charged by any competent authority or third parties concerning the foregoing (including but not limited to Buyer’s failure to timely or adequately charge and invoice the correct VAT amount).
3.2 All invoices are payable in full including all bank charges, under the payment terms and currency stated therein, without any deduction, retention, or set-off. Buyer shall not apply any discounts or deductions for any reason whatsoever. Submission of a complaint concerning the Product or objections to invoiced amounts shall not suspend Buyer’s payment obligations. The time for payment shall be of the essence of the Agreement.
3.3 If Buyer does not make payment by the due date, Vendor may cancel Buyer’s order and charge interest at the rate of 1.5% per month on the overdue sum. Interest shall accrue from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment.
3.4 Vendor shall have the right to require (a) payment to be made in advance or (b) a bank guarantee as security for Buyer’s fulfillment of its contractual obligations.
3.5 Breaches of Buyer’s obligations shall cause Buyer to owe debt collection costs equal to at least five percent of the principal amount. If the reasonable costs incurred to obtain payment out of court exceed five percent of the principal amount, Buyer shall additionally owe the excess. Court and enforcement costs shall also be recoverable from Buyer. Buyer shall be charged interest of 1.5% per month over the debt collection costs that remain unpaid.
4.1 Unless otherwise agreed by the Parties, delivery shall take place Free Carrier (FCA) at Vendor’s designated warehouses (Incoterms 2020).
4.2 Buyer shall accept and take delivery of the purchased Product at the time delivered to it or at the time made available to Buyer to take delivery under the Agreement and the risk and responsibility for the Product at which point shall pass to Buyer.
4.3 The Product shall be stored at Buyer’s risk if Buyer refuses to accept or otherwise fails to take delivery of the Product or has not provided the required information or instructions necessary for the delivery. Buyer agrees to reimburse Vendor for all storage costs and other additional expenses, including costs for re-delivery arising therefrom.
4.4 If payment (or partial payment) before the delivery is agreed upon, the delivery time shall commence on Vendor’s receipt of the said payment.
4.5 Vendor shall notify Buyer of the date on which the Products shall be delivered. While Vendor may use reasonable commercial efforts to maintain the delivery date, they are approximate and not guaranteed and may vary according to the availability of the Product and due to circumstances beyond Vendor’s control. Buyer shall notify Vendor in the event of late delivery and provide Vendor additional time to fulfill its delivery obligation. If the Product cannot be delivered on time for any reasons attributable to Buyer, Vendor shall not be liable and may at its discretion extend the time by a reasonable number of days necessary to fulfill the delivery obligation.
4.6 Vendor reserves the right to deliver the purchased Product as partial deliveries. This is not applicable if a partial delivery has no independent value. Partial deliveries shall entitle Vendor to invoice each partial delivery separately.
5. Reservation of Title
5.1 Vendor shall retain title to the Product delivered/to be delivered until (a) full payment has been received; (b) any amounts owed by Buyer for the work performed by Vendor in connection with the Agreements under which the Product has been or is to be delivered, are paid; and (c) any amounts or claims pursuant to any failure in the performance of the Agreements on the part of Buyer, are paid/resolved.
5.2 Product delivered by Vendor under reservation of title within the meaning of this Article 5 may be resold only in the normal conduct of business. Buyer shall not have the right to pledge and/or establish any other right to the Product.
5.3 If Buyer fails to fulfill its obligation or if legitimate doubt exists as to whether it shall do so, Vendor may repossess or order repossession of the Products under reservation of title either from Buyer or from third parties holding the Product on its behalf. Failure by Buyer to cooperate shall cause Buyer to incur a daily penalty equal to ten percent of the owed amount, without prejudice to any other right or remedies of Vendor under these Terms, any agreement, law, or otherwise (including but not limited to the right to claim specific performance and/or to claim damages where the amount of the actual damages exceeds the amount of the penalty). In the case of decanting, Buyer shall make prepayment based on estimated quantities. Vendor shall only proceed with the decanting process on receipt of Buyer’s prepayment.
5.4 Buyer shall notify Vendor as quickly as may reasonably be expected if third parties seek to establish or enforce any rights to the Product under reservation of title.
5.5 At Vendor’s first request, Buyer shall:
(a) Take out and maintain insurance for the Product delivered under reservation of title against fire, explosion, water damage, and theft, and provide the insurance policy for inspection
(b) Pledge to Vendor all of Buyer’s entitlements from insurers for the Product delivered under reservation of title as described in Article 3:239 of the Dutch Civil Code;
(c) Pledge to Vendor the claims that Buyer obtains against its customers by reselling the Product delivered by Vendor under reservation of title in the way prescribed in Article 3:239 of the Dutch Civil Code;
(d) Mark the Product under reservation of title as the property of Vendor;
(e) Cooperate in other ways in all reasonable measures that Vendor wishes to take to protect its rights of ownership of the Product and that do not unreasonably obstruct Buyer in its normal conduct of business.
6. No Guarantee
6.1 Vendor does not provide any guarantee concerning the Product, in particular, Vendor does not guarantee that the delivered Product shall be usable for the purpose for which Buyer purchased them, regardless of whether Vendor knew or should have known the purpose for which Buyer concluded the Agreement.
6.2 Vendor does not guarantee the presence or absence of certain characteristics indicated by Buyer concerning the aroma or flavour of the delivered Product as it is impossible to determine such characteristics objectively.
6.3 Insofar as Buyer and Vendor jointly conclude after organoleptic assessment of the delivered Product that the aforementioned characteristics are missing, Buyer shall have the right to return the delivered Product and to have them replaced, provided always that the delivered Product has not yet been blended with other products, except for products of the same type delivered earlier by Vendor to Buyer.
6.4 Vendor does not dilute the Product to bottle strength. If Buyer requests this, Vendor shall not be liable for any possible differences in ABV (alcohol by volume) or product quality.
7. Deficiencies and Complaints
7.1 Buyer shall inspect the Product or have the Product inspected on delivery or as soon as possible thereafter and in any event within seven days of delivery and, where applicable, before blending. Buyer shall take a representative sample during the unloading of any Product delivered by tank truck and keep the sample available in case of a claim. As part of the inspection, Buyer shall establish whether the delivered Product conforms with the Agreement, namely:
(a) Whether the correct Product has been delivered;
(b) Whether the quantity of the delivered Product corresponds with the agreed quantity;
(c) Whether the delivered Product meets the agreed quality requirements or, if no such requirements exist, whether the Product meets the expectable requirements for normal usage and/or trading.
7.2 Within seven days of delivery, Buyer shall inform Vendor in writing of any visible deficiencies or shortcomings. All claims by Buyer for shortages or quality deficiencies shall lapse and be forfeited if Buyer fails to complain within seven days from delivery.
7.3 Buyer shall notify Vendor in writing of deficiencies not visible within seven days of discovery and in any event within two months of delivery, except where the delivered Product had already been blended with other products for the production process.
7.4 Even if a complaint is made on time, Buyer shall remain under obligation to pay for and to take delivery of the ordered Product. Product may be returned to Vendor only after its prior written consent.
7.5 In the event of a complaint on good grounds, Vendor shall only be obliged - to be decided at Vendor’s discretion - to replace the relevant Product or to credit or refund the amount charged in connection with the defective good in whole or in part, according to its reasonable judgment and the exclusion of any other rights of the Buyer by law.
7.6 Any claims for payment of an amount of money and/or replacement of the Product and/or supply of any missing part, on whatever basis, as well as any right to dissolve the Agreement will lapse at the earliest of the following times: a) upon late reporting according to Article 7.2 or 7.3, or b) 6 months after the delivery date.
8. Suspension, Cancellation, and Termination
8.1 No order which has been accepted by Vendor may be cancelled except with Vendor’s agreement in writing on the terms that Buyer shall indemnify Vendor in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, restocking, charges and expenses incurred by us as a result of such cancellation.
8.2 Vendor shall have the right to dissolve the Agreement if circumstances that affect persons or materials used or required by Vendor for the performance of the Agreement render it impossible or so onerous and/or disproportionately expensive that its performance cannot reasonably be required.
8.3 Without prejudice to Vendor’s rights and remedies under these Terms, by law or otherwise, Vendor shall have the right to suspend performance or further performance of the Agreement, in whole or in part, terminate or dissolve (at Vendor’s discretion) the Agreement forthwith without notice or court intervention, and without any liability towards Buyer if: (a) Buyer acts in a way detrimental or potentially detrimental to the trading name, reputation, and/or any rights of Vendor, including intellectual property rights; (b) after concluding the Agreement, Vendor has reasons to believe that Buyer is or shall be unable to fulfill its obligations; (c) Buyer’s failure to provide security for the fulfillment of its obligations.
8.4 Either party may terminate this Agreement forthwith by giving written notice to the other in any of the following events:
(a) if the other party commits any breach of any of these Terms of this Agreement and fails to remedy that breach (if capable of remedy) within one month after notice from the other party giving full particulars of the breach and requiring it to be remedied; or
(b) if the other party enters into liquidation whether compulsory or voluntary, or makes any arrangement with its creditors or makes a general assignment for the benefit of its creditors, or if it has a receiver, manager, administrative receiver, or administrator appointed over the whole or substantially the whole of its undertaking or assets, or is declared bankrupt, or a bankruptcy petition has been filed, insolvent or suspends payments (or requested suspension of payments), or loses the power to dispose of its assets as a result of an attachment, placement under guardianship, or if it ceases or threatens to cease to carry on its business or loses control over its business, or makes any material change in its business, or if it suffers any analogous process under any foreign law.
8.5 Upon termination for any reason whatever, (a) all the rights and obligations of the Parties under this Agreement shall terminate, except for any rights or obligations to which any of the parties may be entitled or be subject before its termination (which shall remain in full force and effect); (b) termination shall not affect or prejudice any right to damages or other remedies which the terminating party may have in respect of the event giving rise to the termination or any other right to damages or other remedies which any party may have in respect of any breach of this Agreement which existed at or before the date of termination; and (c) all articles which either expressly or by their nature continue after termination of the Agreement shall remain in effect.
8.6 Any right of the Buyer to suspend performance is hereby excluded.
9.1 Any liability on the part of Vendor, on any basis whatsoever, concerning these conditions, all offers, orders, tenders, and agreements are limited to the provisions laid down in Article 7.5.
9.2 If and to the extent that Vendor is liable for any kind of damage, its liability shall be limited to the invoiced value of the order or, as the case may be, to the part of the order that the liability concerns. In all instances, the liability of Vendor shall be limited to the amount of the payout by its insurer in a particular case.
9.3 Notwithstanding the foregoing, Vendor shall not be liable for any indirect damage or consequential damage such as damage due to delay, loss of profit, penalties forfeited, loss of data, unachieved savings, and interruptions to business.
9.4 Vendor shall not be liable for damage to the Product as a result of shipment.
9.5 Buyer shall defend, save, hold harmless, indemnify and compensate Vendor against any third party claims (and all resulting costs) concerning any Product sold or delivered to Buyer, and from and against any other claims brought by third parties who incur damage through the performance of the agreement for reasons imputable to parties other than Vendor.
9.6 Without prejudice to the foregoing case of any third-party claims made against Vendor, Buyer shall assist Vendor at law and otherwise and shall immediately do everything that may reasonably be expected of it in the case in hand. Failure by Buyer to take proper measures shall give Vendor the right to take such measures itself without serving notice of the breach. All resulting costs and damage incurred by Vendor and third parties shall be fully payable by and at the risk of Buyer.
9.7 Without prejudice to Articles 7.1, 7.2, and 7.3, any claims that Buyer has against Vendor for damages, costs, or payment of any other compensation, on any basis whatsoever, shall lapse in all instances six months after (a) the occurrence of the event giving rise to such claim, or (b) Buyer first recognized or reasonably should have first recognized the occurrence of the event giving rise to the claim, whichever is earlier. Nothing in these conditions shall exclude or limit Vendor’s liability if the damage is a consequence of gross negligence or willful misconduct by Vendor’s executive management.
10. Intellectual Property
10.1 All trademarks, trade names, trade secrets, copyrights, and other intellectual property rights such as patents and designs, concerning the Product including, but not limited to the recipes shall be and remain as Vendor’s property and Buyer shall not at any time claim any right or property therein or register or cause to be registered in any part of the world any trademark, trade name, trade secret, copyright, patent or design similar to or a colourable imitation of any trademark, trade name, trade secret, copyright or design which is Vendor’s property.
10.2 Vendor shall not be bound to disclose to Buyer the recipes of the delivered Products. Buyer warrants to Vendor that no intellectual property rights made available to Vendor for the performance of the Agreement shall infringe the rights of any third parties, including any intellectual property rights. Vendor does not warrant that the Products delivered to Buyer shall not infringe any third party intellectual property rights.
10.3 Without Vendor’s prior written permission, Buyer shall not use any intellectual property rights such as brand names, business names, labels, and packaging of Vendor, its suppliers, producers, distilleries, or of any goods or making any sort of reference to imply a particular distillery or producer or origin, in a certain geographical location or region. Buyer accepts and understands that certain producers are not willing to permit their distilleries to be disclosed and have strongly objected to their heritage material being used by buyers or other companies to promote their private label brands, such companies include brand owners and their distributors and clients. Producers are keen to protect their trademarks and the integrity of their brands. Buyers requiring to declare on their labels or promotional material details of the origin, distillery, or associated information relating to the producer must first approach Vendor, for Vendor to seek prior approval from the relevant producer. Producers have threatened to take legal action against buyers declaring protected information without their prior approval. Buyers shall indemnify and keep Vendor indemnified against all fines, penalties, losses, costs, damages, fees, or charges incurred as a result of Buyer’s breach of this Article herein. Buyer shall be liable to immediately pay any fines, penalties, losses, costs, damages, fees, or charges imposed by the relevant producer on Vendor for such breach or infringement.
Each Party undertakes not to disclose any information exchanged according to this Agreement including the names of the suppliers/producers, origin data, formulae/recipes or ingredients used, and any other confidential information provided by the other. Each party shall maintain the confidential information’s confidentiality and shall not disseminate to any third party unless required by law subject to prior consultation with the other party regarding the timing and to what extent, or unless so authorised by the other party in writing.
12. Force Majeure
12.1 Vendor shall not be bound to fulfill any obligation towards Buyer if prevented from doing so by force majeure or any other circumstances beyond its reasonable control for which it cannot be held responsible by law, legal act, or views prevailing in society and shall not be deemed to be in breach of this Agreement. Vendor shall not be liable to Buyer, because of any delay in performance, or the non-performance, of any of its obligations under, to the extent that the delay or non-performance is due to any force majeure events of which it has notified Buyer, and the time for performance of that obligation shall be extended accordingly.
12.2 Force majeure means any circumstances beyond Vendor’s control, regardless of whether foreseeable on entering into the Agreement, such that Vendor cannot reasonably be required to perform the Agreement, including but not confined to war, the threat of war, disturbances, riots, terrorism, government measures, shortage of raw materials, any kind of factory or transport disruptions or problems (including but not limited to traffic impediments and a shortage of containers or tanks or other transport means), strikes, lockouts or shortage of personnel, breakdowns of machines or tools or other breakdowns within Vendor’s company, quarantine, pandemics, epidemics, floods, fire, other natural disasters, delays caused by frost, actions/measures by any customs authorities (including the temporary or other closing off of certain geographical areas) and failures by third parties engaged by Vendor in performance of the Agreement.
12.3 During force majeure, Vendor may suspend fulfillment of obligations under the Agreement and if it exceeds twelve months, each party shall have the right to dissolve the Agreement without compensating the other party for damage.
12.4 Vendor shall have the right to charge Buyer any additional costs or expenses incurred by Vendor ensuing from or relating to any force majeure event (including any costs resulting from (unexpected) additional waiting time).
12.5 To the extent that Vendor had partially fulfilled or is capable of fulfilling its obligations under the Agreement and insofar as such part is already fulfilled or fulfillable has an independent value, Vendor may separately invoice such part. Buyer shall be bound to pay as if a separate agreement existed.
13. Entire Agreement
13.1 This Agreement, together with any documents referred to therein including Vendor’s Order Confirmation shall constitute the whole agreement between the Parties relating to the subject matter (in particular in relation to the Product, quality, quantity and delivery), and supersedes all prior drafts, agreements, understandings, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral.
13.2 No variation of this Agreement shall be effective unless made in writing and signed by the Parties’ authorised signatories.
14. Rights etc. cumulative and other matters
14.1 No failure to exercise nor any delay in exercising by any party to this Agreement of any right, power, privilege or remedy under this Agreement shall impair or operate as a waiver thereof.
14.2 No single or partial exercise of any right, power privilege or remedy under this Agreement shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
If any provision of this Agreement shall be held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Agreement shall not be affected in any other jurisdiction.
16.1 All notices and other communications required to be given under this Agreement or in connection with the matters contemplated by it, shall be in English and in writing and shall be deemed given (a) if personally delivered upon delivery at the relevant address or (b) if mailed by registered mail (return receipt requested) or delivered by an express courier (with confirmation) to the parties, in which case it shall be deemed to have been given, five days after the date of posting, at the following addresses (or at such other address specified pursuant to Article 16.2).
If to Vendor, to: If to Buyer, to:
The Main Rum Company LtdContact/address details set forth
8 Tower Street, Liverpool in the Order Confirmation.
L3 4BJ, United Kingdom
With copy to: E&A Scheer B.V., Deccaweg 22, 1042 AD, Amsterdam
The Netherlands, for the attention of: Chief Executive Officer
16.2 Any party to this Agreement may notify the other party of any change to the address or any other details, provided that such notification shall only be effective five days after the notice is given.
17. Relationship of the Parties Nothing contained in this Agreement shall be deemed to be construed by the Parties or any third party as creating a partnership, an agency relationship or joint venture between the Parties or any of their respective employees, representatives or agents.
18. Governing Law and Jurisdiction
18.1 This Agreement shall be governed and construed in accordance with the laws of the Netherlands.
18.2 In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement ("proceedings") each of the parties irrevocably submits to the exclusive jurisdiction of the Courts in Amsterdam, the Netherlands and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inconvenient forum.