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Terms and Conditions

Terms and conditions for the sale of goods

    In these Conditions the following definitions apply:
    Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
    Contract: any contract between Think Drinks and the Customer to buy and sell Goods under the Master Order.
    Delivery: the transfer of physical possession of the Goods to the Customer at the Site.
    Equipment: the drinks dispensing equipment supplied by Think Drinks under the Supply of Equipment Agreement including all substitutions, replacements or renewals of such Equipment and all related accessories.
    Goods: all Think Drinks syrups and other consumable products supplied by Think Drinks to the Customer under any Contract.
    Initial Supply Period: the term listed on the Master Order.
    Insolvency or Incapacity Event: any of the events listed at clause 11.1(d).
    Master Order: the Customer’s order for the Goods for the Initial Supply Period as attached to these conditions.
    Notice: a written document sent by either party to the other personally, posted by first class mail or sent by email, facsimile transmission (receipt confirmed) to the other party at that party’s registered office or such other address as may at the relevant time have been notified pursuant to this clause to the other party, provided that where any Notice is served by email it shall only be properly served if it is sent to an email address notified to the other party for that purpose and receipt is acknowledged.
    Site: the Customer’s premises for delivery of the Goods as set out in the Master Order or any other Contract.

    1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
    2. The Master Order forms part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Master Order.
    3. Unless the context otherwise requires words in the singular shall include the plural.
    4. A reference to a statute or statutory provision is a reference to it as it is in force for the time being.
    5. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    1. By signing the Master Order or by accepting delivery of any subsequent order or contract for the supply of Goods the Customer shall be deemed to have accepted the terms of this agreement. This agreement operates to the exclusion of any additional or different terms and conditions stated on the Master Order.
    2. These conditions apply to the agreement to the exclusion of any other terms imposed by either party or implied through trade, custom, practice or course of dealing.
    3. Any samples produced by Think Drinks are produced solely to give an approximate idea of the Goods and shall not form part of any Contract.
    4. Each quotation given by Think Drinks for the Goods shall not constitute an offer and shall remain valid for 30 days from the date of issue.
  3. TERM
    1. This agreement shall commence when the Master Order is signed Think Drinks Limited and continue for the Initial Supply Period or until otherwise terminated under clause 11.
    2. Where no Initial Supply Period is entered on the Master Order, the Initial Supply Period shall be 12 months
    1. Think Drinks, either directly or via a third party agent, shall deliver the Goods to the Customer unless otherwise agreed between the parties.
    2. Each delivery by Think Drinks shall be accompanied by a Delivery Note confirming details of the Contract.
    3. Upon receipt of the Goods the Customer shall:
      1. Immediately and before signing a Delivery Note examine the Goods for any apparent defects or shortages; and/or
      2. inform Think Drinks by Notice about any damage, shortage or loss relating to the Goods which is reasonably discoverable on careful examination within 2 Business Days of delivery.
    4. Unless otherwise agreed in writing, delivery of the Goods shall be deemed to take place on the Goods’ arrival at the Site.
    5. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Goods may be delivered by Think Drinks in advance of any quoted delivery date provided reasonable notice is given to the Customer by Think Drinks.
    6. Think Drinks reserves the right to deliver the Goods by instalments and to raise a separate invoice for each instalment which shall constitute separate contracts.
    7. Late delivery of the Goods (whether in full or in part) shall not entitle the Customer to reject the Goods, terminate the Contract or withhold payment of any part of the price set out in the relevant Contract.
    8. Think Drinks reserves the right to deliver up to 10% more or less than the quantity of Goods stated on the Master Order and, in the event of such variance, to adjust the price pro rata.
    9. Think Drinks shall not be liable for any delay in delivery of the Goods or non-delivery of the Goods caused by a Force Majeure Event or the Customer’s failure to provide Think Drinks with adequate delivery instructions.
    10. Without prejudice to clause 4.9 above, Think Drinks’ liability for non-delivery of the Goods shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Goods.
    11. If the Customer fails to accept delivery of the Goods or fails to give Think Drinks adequate delivery instructions, then, without prejudice to any other right or remedy available to Think Drinks, Think Drinks may:
      1. store or arrange storage of the Goods pending delivery to the Customer at the Customer’s expense; and/or
      2. re-sell the Goods to any other person at the best price readily available and (after deducting reasonable expenses incurred by Think Drinks) charge the Customer for any shortfall below the price as set out in the Contract provided that such failure or delay is caused by a Force Majeure Event or Think Drinks’ failure to comply with its obligations under this agreement.
    1. The risk in the Goods shall pass to the Customer on Delivery.
    2. Title to the Goods shall not pass to the Customer until:
      1. the Customer has paid for the Goods in full (including any applicable interest or charges); or
      2. the Customer sells the Goods to a third party, in which event, ownership shall pass immediately prior to the re-sale.
    3. Think Drinks’ ownership of the Goods shall not be affected by any alteration, attachment or incorporation of the Goods into any other goods whilst in the Customer’s control.
    4. The Customer shall be liable to Think Drinks for any damage or loss to Goods owned by Think Drinks during the Customer’s custody.
    1. During this agreement, the Customer shall:
      1. ensure the Goods are dispensed or otherwise used only with the Equipment and in accordance with Think Drinks’ instructions;
      2. update Think Drinks about all material matters relating to the Goods;
      3. grant Think Drinks all required access for the purpose of:
        1. monitoring compliance with this agreement; or
        2. recovering possession of Goods where payment has not been received or pursuant to clause 8 below;
      4. notify Think Drinks immediately if it becomes subject to any Insolvency or Incapacity Event;
      5. give Think Drinks such information relating to the Goods as Think Drinks may require from time to time; and
      6. indemnify Think Drinks on demand against all losses, liabilities, claims, damages, costs or expenses arising out of or in connection with any negligence, misuse or mishandling of the Goods or otherwise caused by the Customer or its officers, employees, agents and contractors in breach of the terms of this agreement.
    2. Until title to the Goods passes to the Customer in accordance with the terms of this agreement and without prejudice to clause 6.3 below, the Customer shall:
      1. hold the Goods on a fiduciary basis as Think Drinks’ bailee;
      2. store the Goods in such a manner as to enable them to remain identifiable as Think Drinks’ property; and
      3. not remove, deface or obscure the packaging of the Goods.
    3. Nothing in this clause shall prevent the Customer from re-selling the Goods in the ordinary course of business.
    4. Where the Customer has either sold or agreed to sell Goods which would, but for the re-sale, belong to Think Drinks, the Customer agrees to hold any proceeds from such sales on trust for Think Drinks.
  7. PRICE
    1. The price for the Goods shall be the price set out in the Master Order, or if no price is quoted, the price shall be that set out in Think Drinks’ price list current at the date Think Drinks signs the Master Order.
    2. During the Initial Supply Period, Think Drinks may increase the price for the Goods at any time prior to Delivery of Goods under a Contract, to reflect an increase in the cost of the Goods that is due to any:
      1. factor beyond Think Drinks’ control (including increases in taxes and duties and increases in manufacturing costs);
      2. alteration to the Contract by the Customer; or
      3. delay caused by any inadequate or inaccurate delivery or other instructions given by the Customer.
    3. After the Initial Supply Period, Think Drinks may at its sole discretion, adjust the prices charged for the Goods provided that the Customer receives at least 2 months’ Notice of such increase.
    4. Unless otherwise stated, all prices given by Think Drinks for the Goods are exclusive of VAT or any other taxes or fees.
    1. Think Drinks may invoice the Customer for the Goods on or at any time after the Customer places an order for Goods under the terms of this agreement. Unless otherwise agreed, payment shall be due immediately.
    2. The Customer shall at the request of Think Drinks, complete a Direct Debit mandate authorising Think Drinks to deduct payments for the Goods from the Customer’s bank account when payment becomes due or as otherwise agreed.
    3. Time for payment shall be of the essence. If the payment is not received in accordance with this clause, Think Drinks may:
      1. charge interest on the overdue amount at the rate of 4% per annum above the base rate from time to time of Barclays Bank plc or such greater amount as may be allowed under the Late Payment of Commercial Debts (Interest) Act 1998, calculated on a daily basis and/or;
      2. cancel the Contract; and/or
      3. suspend any further deliveries to the Customer; and/or
      4. charge the Customer with all costs incurred in the recovery of the due sums, including but not limited to, the costs incurred in acting pursuant to clause 8.3(e) below; and/or
      5. exercise any of Think Drinks’ rights to recover possession of the Goods which are in course of transit to the Customer.
    4. The Customer shall not be entitled to assert any credit, set-off or counterclaim against Think Drinks in order to justify withholding payment of any such amount under this agreement, either in whole or in part. Think Drinks 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 Think Drinks to the Customer.
    1. Think Drinks warrants that on delivery, the Goods shall:
      1. conform in all material respects with their description and any applicable specification; and
      2. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
    2. Failure by Think Drinks to comply with clause 9.1 shall entitle the Customer to terminate this agreement.
    1. Because information and knowledge about the Customer’s potential losses suffered as a result of Think Drinks’ breach of contract is more readily ascertainable by the Customer, and because any such losses could be disproportionate to the Contract price, in order that Think Drinks can keep the price of the Goods as low as possible, the parties agree that Think Drinks limits its liability as follows:
      1. Where a valid Claim in respect of the Goods is based on any defect in the quality or condition of the Goods or as otherwise agreed between the parties, Think Drinks agrees to replace any of the Goods at no extra cost to the Customer or, at Think Drinks’ sole discretion, to refund to the Customer the purchase price of the Goods (or proportionate part of the price), but Think Drinks shall have no further liability to the Customer.
      2. Nothing in this agreement shall exclude or limit either party’s liability for death or personal injury caused by its own negligence, fraud, fraudulent misrepresentation, or any other liability which cannot be excluded by law.
      3. If more than one person is named as the Customer on the Master Order or any subsequent Contract for the supply of Goods, their liability shall be joint and several.
      4. Any condition, warranty or other term concerning the Goods which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
    2. Without prejudice to clause 10.1:
      1. Think Drinks’ maximum aggregate liability for breach of this agreement shall in no circumstances exceed £50,000
      2. neither party shall be liable under this agreement for:
        1. any loss of profit;
        2. any loss of revenue
        3. any loss of business; or
        4. any indirect or consequential loss or damage, in each case, however caused, even if foreseeable.
    1. Think Drinks may, without prejudice to any other right or remedy which may be available to it, terminate this agreement immediately by Notice to the Customer if:
      1. the Customer defaults in any of its payment obligations under this agreement, any agreement or the supply of Goods or any other agreement between the Parties;
      2. the Customer commits a material breach of this agreement which breach is irremediable, or which breach (if remediable) is not remedied within ten (10) Business Days after the service of a Notice from Think Drinks requiring it to do so;
      3. the Customer stops using the Equipment and/or ordering the Goods in favour of another supplier of the same or similar Goods or Equipment;
      4. any of the following events occurs:
        1. 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 debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
        2. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
        3. 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 the Customer; or
        4. an application is made to court, or an order is made, for 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
        5. the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
        6. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
        7. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 7 days; or
        8. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(d)(i) to clause 11.1(d)(vii) (inclusive);
      5. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
      6. the Customer’s financial position deteriorates to such an extent that in Think Drinks’ opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
      7. 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.
    2. Either party may terminate this agreement after the Initial Supply Term for any reason by giving at least 1 month Notice to Think Drinks.
    1. Subject to clause 13, upon termination of this agreement, however caused:
      1. Think Drinks may, by its authorised representatives, without notice and at the Customer’s expense, recover any Goods, title to which has not yet passed to Think Drinks and for this purpose may enter the Site or any premises at which the Goods located; and
      2. without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Think Drinks on demand any liabilities, costs and expenses incurred by Think Drinks owed on termination or incurred by Think Drinks when recovering the Goods and/or in collecting any sums due under this agreement.
    2. Termination of this agreement shall be without prejudice to the rights and obligations of the parties accrued up to the date of termination.
    1. Upon early termination of this agreement by Think Drinks before the expiration of the Initial Supply Period, the Customer shall pay to Think Drinks:
      1. all sums owed to Think Drinks at the date of termination under this agreement plus interest in respect of any late payments; and
      2. liquidated damages calculated at the rate of 50% of the average monthly invoiced amount, such charge to be calculated on a historic basis at the cost prevailing on the date of early termination multiplied by the number of unexpired months under this agreement.
    2. The Customer recognises and accepts that the amount calculated in clause 13.1 represents a fair measure of the losses and damages to Think Drinks as a result of early termination of this agreement, as would be calculated in a court of law.
    1. Where the Customer offers to re-sell the Goods to other parties the Customer must offer to re-sell those Goods strictly in accordance with any instructions from Think Drinks and in accordance with any Requirements.
    2. The Customer shall indemnify Think Drinks for any liability incurred as a result of breach of this clause.
    1. We will only use the personal information you provide to us to provide our services to you, or to inform you about similar services which we provide, unless you tell us that you do not want to receive this information.
    1. Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent Think Drinks from complying with the terms of this agreement for more than 8 weeks, the Customer shall have the right, without limiting its other rights or remedies, to terminate this agreement with immediate effect by giving Notice to Think Drinks.
    1. Think Drinks may at any time assign, transfer or charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
    2. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement without the prior written consent of Think Drinks.
    1. This agreement constitutes the whole agreement between the parties and takes the place of all proposals or other communications about the subject of this agreement. Each party agrees that its only liability in respect of the warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
    2. Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
    3. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    1. A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
    2. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement is not subject to the consent of any person that is not a party to this agreement.
    1. No failure or delay by a party to exercise any right or remedy provided under this agreement 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 the further exercise of that or any other right or remedy.
    1. If any court or competent authority finds that any provision of this agreement (or 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 this agreement shall not be affected.
    2. If any invalid, unenforceable or illegal provision of this agreement 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.
    1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter.

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