This Rental Agreement (Rental Agreement) is made up of the terms set out below and each Order placed by You will be subject to these terms. Provision or acceptance of an Order will not create a separate agreement between You and Us. Instead, the Order will be part of this Rental Agreement. The term of this Rental Agreement starts on the date set out above and will continue until this Rental Agreement is terminated under clause 14.
2. Keg Rental
2.1 Kegstar will rent the Kegs to Customer for the Rental Period in accordance with this Rental Agreement.
2.2 Kegstar will deliver the Kegs in accordance with an accepted Order. Kegs must only be used for Permitted Uses.
2.3 Kegstar will collect the Kegs promptly following notification from a Receiving Venue, Authorised Partner or Customer.
2.4 Kegstar may refuse to supply any Kegs requested by You under this Rental Agreement (for example, if the quantity ordered is lower than our Minimum Order Quantity or if the quantity ordered is too large for Kegstar to fulfil due to stock shortages).
2.5 Kegstar will provide all ‘clean’ Kegs substantially empty and clean and in accordance with the Process Guideline’s attached to this Rental Agreement. Kegstar will provide all ‘unclean’ Kegs substantially empty and unclean. Kegstar will provide all ‘unclean’ Casks substantially empty and unclean.
2.6 Customer may not fill a Keg outside a Rental Period. Customer may only fill a Keg once in the period between the date We deliver it and the date We collect it. Customer must immediately notify Kegstar if any Keg is sent from a Receiving Venue back to the premises of the Customer or an Authorised Partner.
2.7 Customer agrees that, by the 21st day of each calendar month, it will supply Us with a written month-by- month forecast of Customer’s expected requirements for Kegs during the next three months. Customer must use reasonable efforts to ensure the accuracy of each forecast supplied.
3. Rental Charges
3.1 You will pay Us for the rental of the Kegs in accordance with the Pricing Schedule (such amounts exclude any VAT) as of the date your Order is delivered
3.2 Rental will be charged per Order. The rental charge per Order will be equal to the Issue Fee applying to the total number of Kegs in the Order and the Delivery Fee (as per the Pricing Schedule). Kegs will not be delivered until an executed Direct Debit Authority has been received entitling Kegstar to debit the Issue Fee following delivery.
3.3 Paying the Issue Fee entitles the Customer to retain the Kegs in its possession or under its control for the Rental Period.
3.4 Rental charges are not refundable.
3.5 If Customer requests Us to collect a Keg before it has been delivered to a Receiving Venue or Authorised Partner, Customer will be liable to pay Us additional freight charges for the Order or the Customer may arrange to return the Keg to Kegstar’s nominated warehouse.
4. Rental Period
4.1 The Rental Period for a Keg:
(a) starts when We deliver it to the delivery address specified in the Order; and
(b) ends on the earlier of:
(i) the date the Keg is scanned out (using the Kegstar Application) and delivered to a Receiving Venue, Authorised Partner, or returned to Us; and
(ii) any date the Rental Period is terminated under this Rental Agreement (Termination Date).
4.2 A Rental Period must not be longer than the Maximum Rental Period.
4.3 You must ensure that Kegs are available for Us to collect from You on:
(a) the Termination Date, if the Rental Period is terminated under this Rental Agreement; or
(b) the first Business Day after the end of the Maximum Rental Period, if the Rental Period does not end earlier.
If any Kegs are not available for Us to collect in accordance with this clause 4.3 then a Super-Slow Fee will apply.
4.4 If the term of this Rental Agreement expires before the end of a Rental Period, You shall ensure that the Kegs are made available for collection in accordance with clause 4.3, however this Rental Agreement shall continue to apply in full to any Kegs being rented by You until they are collected by Us.
5. Other Charges
You must also pay:
a) Daily Rental Fees or Wholesaler Daily Rental Fees (as per the Pricing Schedule);
b) the Slow Fee where a Keg’s Rental Period is greater than the 90-day period;
c) any amounts payable under clause 12 (‘Loss, Theft, Damage’);
d) any other applicable charges as specified in the Pricing Schedule;
e) any tax (including but not limited to VAT), fine, penalty or government charge arising out of this Rental Agreement or Your use of the Kegs.
6.1 Charges will be settled by direct debit facility unless otherwise agreed to in writing by Kegstar.
6.2. Issue Fees are payable as set out in clause 3. Issue Fees will be debited from Your chosen bank account 5 working days following receipt of invoice.
6.3 Any other payments or charges due under this Rental Agreement will be charged and invoiced as stated in the Pricing Schedule and will be debited from Your chosen bank account within 5 working days following receipt of invoice (or, where the relevant amount is payable to a government body, by the date specified by that body). VAT will be added to all invoices.
6.4 If You do not pay an invoice in full by the due date, We may charge You:
(a) interest (calculated daily) on the unpaid amount, at a rate equal to the Bank of England base rate for business to business transactions published on the first Business Day of the month in which payment was due, plus eight per cent (8%); and
(b) any costs and expenses (including legal costs, direct debit insufficient funds charges, and debt collection expenses) incurred by Us in recovering the unpaid amount.
7. Delivery and Return of Kegs
7.1 Unless We agree otherwise in writing, all 20ltr Kegs will be delivered in a quantity of 45 per pallet, 30ltr Kegs will be delivered in a quantity of 40 per pallet, all 50ltr Kegs will be delivered in a quantity of 24 per pallet and all Casks will be delivered in a quantity of 36 per pallet.
7.2 Kegs must be returned to Us in the same condition as when You received them (except for ordinary fair wear and tear), and without any stickers, markings or branding of any sort. If You wish to apply these items, You must use temporary Keg or Cask collars and dust caps which are removed before the Kegs are returned to Us.
8. Customer Obligations
8.1 You must:
(a) not at any time allow any third party (other than Receiving Venues and Authorised Partners) to use or have possession of the Kegs, unless We have given Our prior written consent;
(b) comply with all Applicable Laws when using or transporting Kegs;
(c) ensure the Receiving Venue only uses Kegs for the short-term storage of Your product and the dispensing of the product via a draught system. Kegs must not be used for beverage ageing by You or the Receiving Venue;
(d) ensure Your employees, agents and contractors, and those of Receiving Venues:
(i) operate and move the Kegs safely and in accordance with all Applicable Laws and any Kegstar instructions;
(ii) Inspect and check the condition of the Kegs for Your particular purpose immediately before using the Kegs; and
(iii) only use the Kegs for their intended purpose;
(e) not in any way alter, modify, damage or repair the Kegs without Our prior written consent;
(f) not deface, vary or erase any identifying mark, number, notice or safety information on a Keg;
(g) ensure all Kegs are loaded, secured and transported in accordance with all Applicable Laws and safety guidelines;
(h) ensure the Kegstar Application is installed or available on Your mobile devices and the mobile devices of all relevant members of Your staff and/or that all relevant members of Your staff have access to a scanner; and
(i) ensure that each Keg that leaves Your premises is properly scanned out to a Receiving Venue or Authorised Partner using the Kegstar Application or the scanner (as applicable), all in accordance with Our instructions.)
8.2 Kegs may only be filled with beer, cider, wine, coffee, kombucha and spirit-based beverages. (“Product”). You must obtain our written approval to fill a Keg with any other liquid or substance.
9.1 The Kegs, scanners, and all other equipment provided to Customer by Us (collectively, Equipment) remain Our property at all times. You and the Receiving Venues and Authorized Partners are only entitled to use the Equipment as bailees. Kegstar never sells or transfers ownership of its Equipment.
9.2 You must not, sell, assign, transfer, charge, mortgage, pledge or create any other form of security interest over, or otherwise deal with, the Kegs or Equipment in any way.
10.1 Upon request, Customer shall execute any documents necessary and provide any assistance or information required by Us to ensure that Our ownership of the Kegs is not adversely affected.
10.2 You agree to notify Us in writing of any change to Your details set out in the Order form, within 5 days of the date of such change.
11.1 If a Keg is identified as broken or out of specification breaks or becomes unsafe to use during the Rental Period, You must ensure that:
(a) the Keg is immediately taken out of use and We are promptly notified;
(b) all necessary steps are taken to prevent:
(i) injury to persons or property resulting from the Keg’s condition; and
(ii) any further damage to the Keg; and
(c) no-one repairs or attempts to repair the Keg without Our prior written permission.
11.2 Unless clause 12.2 or 12.3 applies, We will repair the Keg or provide a substitute (at our own cost), as soon as reasonably possible after receiving a notice under this clause 11.
11.3 Clause 11.1 and 11.2 also apply to a Keg Unfit to Use.
12. Loss, Theft, Damage and Kegs Unfit for Use
12.1 During the Rental Period You are responsible for the safe storage, use and care of all Kegs and Equipment and must protect them from loss, theft and damage.
12.2 If, at any time during the Rental Period, a Keg breaks or becomes unsafe to use due to Your failure to comply with clause 12.1 or Your negligence, then You must pay, at Our option, either the full cost of repairing the Keg or the Super-Slow Fee in respect of that Keg.
12.3 If at any time during the Rental Period, a Keg is lost, stolen or damaged beyond fair wear and tear, You must pay the Super-Slow Fee in respect of that Keg.
12.4 While a Keg is being repaired or replaced, You must continue to pay all rental charges applying to that Keg.
12.5 If You have paid all amounts due under this clause 12, We will return the repaired or replaced Keg to You. You must pay rental charges for that Keg for the rest of the Rental Period in accordance with clause 3.
12.6 If, following inspection of the Kegs immediately prior to use, in accordance with clause 8.1 of this Rental Agreement, You deem that a Keg is Unfit for Use, you must immediately separate the Keg(s) which are deemed Unfit for Use and notify Kegstar. Kegstar’s sole liability in respect of Unfit for Use Kegs will be to collect and replace such Kegs at Kegstar’s expense and to compensate You for the rental fees paid in respect of such Keg from the date of its delivery to You until a replacement has been delivered.
13. Exclusions, Limitations, Indemnity
13.1 Except as expressly stated otherwise in this Rental Agreement, Kegstar provides Kegs and other “as is” basis, without any guarantee, warranty or condition, express or implied, statutory or otherwise. To the maximum extent permitted by law, Kegstar specifically excludes any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
13.2 Where We cannot exclude an implied guarantee, term, warranty or condition, but We are permitted to limit Your remedy for a breach of the implied provision, then Our liability will be limited, at Our option:
(a) in the case of goods, to repairing or replacing the goods, or supplying substitute goods (or paying the cost of doing so); or
(b) in the case of services, to supplying the services again (or paying the cost of doing so).
13.3 To the maximum extent permitted by law, Kegstar’s maximum aggregate liability to Customer is limited to the total amount of rental charges paid by Customer under this Rental Agreement during the six month period ending on the date on which an event or circumstance causing liability to Kegstar first occurred. Any calculation of Kegstar’s aggregate liability must include amounts paid (or the value of any goods or services replaced, repaired or supplied) by Us in accordance with clause 13.2.
13.4 Nothing in this clause 13 shall give Us a wider exclusion of liability for death or personal injury than it is possible to exclude having regard to the Unfair Contract Terms Act 1977.
13.5 Kegstar will not be liable to Customer for any consequential, indirect or special loss or damage, loss of actual or anticipated profits, revenue or business, business interruption, or loss suffered by third parties, under or relating to this Rental Agreement, whether in contract, tort (including without limitation negligence), equity, under statute, under an indemnity, or on any other basis, and whether or not such loss or damage was foreseeable (even if advised of the possibility of the loss or damage).
13.6 You indemnify and hold Us harmless from and against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees on a full indemnity basis) suffered or incurred by Us in connection with Your rental or use of any Keg or Your breach of this Rental Agreement (including, without limitation, with respect to any personal injury; property damage or third party claim). Your liability under this indemnity is reduced to the extent that Our breach of this Rental Agreement or negligence causes any liability, claim, damage, loss, cost or expense.
13.7 Each indemnity in this Rental Agreement is a continuing obligation, separate and independent from the other obligations of the indemnifying party, and survives the termination or expiration of this Rental Agreement.
14.1 Either party may immediately terminate this Rental Agreement and any Rental
Period by giving written notice to the other party, if that other party:
(a) breaches any term of this Rental Agreement and fails to remedy the breach within 14 days of written notification of the breach; or
(b) becomes insolvent, enters into liquidation, administration or receivership, or ceases to carry on business.
14.2 Either party may terminate this Rental Agreement for any reason by giving the other party 30 days’ written notice.
14.3 Nothing in this clause 14 affects any rights We may have under this Rental Agreement or any other right or remedy under law or equity in relation to the period prior to such termination (or if later, the period prior to the date all Kegs are returned to us in accordance with clause 4).
15. Recovery of Kegs
15.1 You expressly consent to Us entering Your premises for the purposes of recovering any Kegs after this Rental Agreement or a Rental Period has terminated, or where a Rental Period has ended and the Kegs have not been returned to Us or made available for collection.
15.2 If requested by us, you shall identify any Kegs which are located with an Authorised Partner or a Receiving Venue as being owned by Us and assist us to recover those Kegs if required.
16. Force Majeure
Neither party will be liable for a delay in performance of an obligation under this Rental Agreement (other than an obligation to pay money) due to causes beyond the party’s control, including but not limited to acts of God, war, terrorism, civil commotion, riots, government orders or regulations, fires, floods, strikes, lockouts or other labour disputes and inability to obtain transportation over land or sea.
17. Intellectual Property Rights and Confidential Information
17.1 The Customer agrees and acknowledges that:
(a) Intellectual Property Rights subsists in the Tracking Data and Transactional Information;
(b) Kegstar is the owner of all Intellectual Property Rights in the Tracking Data and Transactional Information; and
(c) Customer shall use, and shall be entitled to use, the Transactional Information solely for the purposes of this Rental Agreement and the rights and obligations of the Customer hereunder.
17.2 Kegstar reserves all rights in the Intellectual Property Rights, Tracking Data and Transactional Information and Confidential Information of Kegstar.
17.3 Kegstar may not disclose the Confidential Information of the Customer to any person except:
(a) to its related bodies corporate, and its and their directors, officers, employees, representatives, legal advisers, auditors and other consultants, subject to that recipient being subject to an equivalent duty of confidentiality;
(b) to an Industry Association as part of an aggregated data set of the Kegstar customer base for benchmarking of Kegstar’s customers’ performance against the aggregate;
(c) with the prior written consent of the Customer;
(d) if Kegstar is required to do so by law or a stock exchange; or
(e) if Kegstar is required to do so in connection with legal proceedings.
17.4 The Customer must not disclose the Confidential Information of Kegstar to any person except:
(a) to its related bodies corporate, and its and their directors, officers, employees, representatives, legal advisers, auditors and other consultants, subject to that recipient being subject to an equivalent duty of confidentiality;
(b) with the prior written consent of the Kegstar;
(c) if the Customer is required to do so by law or a stock exchange; or
(d) if the Customer is required to do so in connection with legal proceedings.
In these Terms and Conditions:
(a) Applicable Laws means any statute, regulation or other instrument or code applying to the Customer, an Authorised Partner or a Receiving Venue (including but not limited to those concerning occupational health and safety, food/beverage hygiene and food/beverage handling standards);
(b) Authorised Partner means a third party (including but not limited to a warehouse, distributor or wholesaler) that is either listed in the “Schedule of Authorised Partners” provided to you by Kegstar from time to time, or otherwise approved by Kegstar in writing;
(c) Business Day means a day other than a Saturday, Sunday or a public holiday in England and Wales on which banks are open for general banking business;
(d) Collection Date means, for a Keg, the date the Receiving Venue, Authorised Partner or Customer notifies Us the Keg is available for collection;
(e) Initial Period has the meaning given to it in clause 3.3;
(f) Kegs means 30ltr kegs, 50ltr kegs, 9G casks and any other container offered by Kegstar for rental which are delivered to You under this Rental Agreement, and Keg means any one of them;
(g) Super-Slow Fee means the per Keg fee specified in the Pricing Schedule;
(h) Maximum Rental Period means 180 days.
(i) Minimum Order Quantity means the minimum number of Kegs per Keg type that can be ordered;
(j) Order means an order by You and accepted by Us on the terms of this Rental Agreement, containing: (a) details of the number of Kegs You are renting and (b) the delivery address;
(k) Our, We and Us refers to Kegstar;
(l) Permitted Use means use or storage at the premises of the Customer, an Authorised Partner or a Receiving Venue and the holding of beer, cider, wine, coffee, kombucha or ready-to- drink spirits in each case in accordance with the terms of this Rental Agreement;
(m) Pricing Schedule means the standard pricing schedule as updated from Kegstar from time to time (the current version of which is attached to this Agreement);
(n) Process Guidelines means the guidelines as attached to this Rental Agreement and as updated by Kegstar from time to time and provided to You which outline the cleaning, quality control and packaging processes in relation to the Kegs provided by Kegstar;
(o) Receiving Venue means, for a Keg, the draught venue notified to Us by the Kegstar system as the venue to which the Keg will be delivered to;
(p) Rental Period means the period described in clause 4;
(q) Unfit for Use means a Keg that has been provided by Kegstar not in accordance with the Process Guidelines.
(r) Confidential Information means all confidential, non-public or proprietary information, regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of the agreement relating to the business, technology or other affairs of the Customer or of Kegstar, but does not include information:
(i) which is in or becomes part of the public domain other than through breach of this agreement or an obligation of confidence owed to the Customer by Kegstar or by Kegstar to the Customer;
(ii) which Kegstar or the Customer can prove by contemporaneous written documentation was:
(iii) already known to it at the time of disclosure by it (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(iv) independently developed by Kegstar or the Customer without reference to the Confidential Information of the Customer or, as applicable, Kegstar; or
(v) which Kegstar or the Customer acquires from a source other than the Customer or, as applicable, Kegstar or any of its representatives where such source is entitled to disclose it;
(s) Direct Debit Authority means a duly completed Direct Debit Request New Customer Form or other similar documentation authorizing direct debit payment;
(t) Issue Fee means the per Keg fee specified in the Pricing Schedule as payable where upon the issue of Kegs;
(u) Kegstar means Kegstar Limited
(v) Kegstar Application means the Kegstar software publicly available for download to mobile devices;
(w) Industry Association means any beer, cider, wine or spirits association that supports and protects the rights of the alcohol industry and alcohol industry partners, including warehouses, logistics partners, venues and suppliers;
(x) Intellectual Property Rights means copyrights, trade marks, design rights, database rights, patents, semiconductor or circuit layout rights, and including any application for registration or right to apply for registration of the same;
(y) Slow Fee means the per Keg fee specified in the Pricing Schedule
(z) Tracking Data means data obtained by Kegstar in relation to the distribution, collection or other movement of its owned kegs;
(aa) Transactional Information means any invoice, data, compilation of data, report or report format that is provided to Customer by or on behalf of Kegstar in any material form, including but not limited to Tracking Data;
(bb) You and Your refers to Customer.
19.1 If any part of this Rental Agreement becomes void or unenforceable for any reason, that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
19.2 This Rental Agreement is governed by the laws of England and Wales and each party submits to the exclusive jurisdiction of the courts of England.
19.3 This Rental Agreement (including all Order Forms) comprises the entire between the parties. No additional terms and conditions (including any terms contained in any purchase order) apply to the rental of Kegs unless agreed in writing by the parties.
19.4 You acknowledge that You have not entered into this Rental Agreement in reliance on any representations or inducements (including in relation to the use of Kegs) other than those contained in this Rental Agreement
19.5 No failure or delay by a party in exercising any right, power, or remedy under this Rental Agreement will operate as a waiver of that right, power or remedy.
19.6 A provision of or a right created under this Rental Agreement may not be waived except in a writing signed by the party or parties to be bound by the waiver. Kegstar may vary this Rental Agreement from time to time by giving Customer 30 days’ written notice of Our proposed amendments (Notice Period). If You do not accept the proposed amendments, You may terminate this Rental Agreement by notifying Us in writing at any time during the Notice Period, and termination will take effect on expiry of the Notice Period. If You do not terminate this Rental Agreement during the Notice Period, You will be deemed to have agreed to the notified amendments and they will be incorporated into this Rental Agreement on and from expiry of the Notice Period.
19.7 All notices under this Rental Agreement shall be sent to the address of Us or You set out on the first page of this Rental Agreement or in the Order Form or as otherwise may be agreed from time to time.
19.8 You may not assign or transfer any of Your rights or obligations under this Rental Agreement without our prior agreement.
19.9 The person signing this Rental Agreement on Your behalf warrants that s/he has full power and authority to enter into this Rental Agreement on Your behalf and bind You. The person signing this Rental Agreement on Your behalf warrants that s/he has full power and authority to enter into this Rental Agreement on Your behalf and bind You