Storage Terms

 

THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING ORDER FORM BETWEEN THE SINGLE CASK BOND LIMITED AND THE CUSTOMER

 

SCHEDULE

 

TERMS AND CONDITIONS FOR PROVISION OF STORAGE SERVICES

 

 

  1. INTERPRETATION

    1. The following definitions and rules of interpretation apply in the Contract:

 

Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.

 

Cask(s): any portable vessel (whether manufactured out of wood or other materials) into which the spirits are filled, further specified in the Order Form as provided or otherwise delivered by the Customer to the Premises for the purpose of the Services. 

 

Commencement Date: the commencement date as set out in the Order Form.

 

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.

 

Contract: the contract between The Single Cask Bond and the Customer for the supply of Services in accordance with the Order Form and these Conditions. 

 

Customer: the person or firm who purchases the Services from The Single Cask Bond as detailed in the Order Form.

 

Delivery Date: the delivery date(s) specified in the Order Form.

 

HMRC: HM Revenue and Customs.

 

Order: the Customer’s order for the supply of Services as set out in the Order Form.

 

Premises: The Single Cask Bond warehouse at 5 Station Road, Auchtermuchty, Fife, KY14 7DP or as otherwise set out in the Order Form.

 

Services: the storage, re-gauging, dipping, re-racking, or removal of Casks and other storage or handling services provided by The Single Cask Bond under the Contract as set out in the Order Form and relevant Service Specification.

 

Service Specification: any specification for the Services that are agreed in writing by the Customer and The Single Cask Bond (and set out in the Order Form).

 

The Single Cask Bond: The Single Cask Bond Limited, a company registered in Scotland with company number SC651136 and having its registered office at 5 Station Road, Auchtermuchty, Fife, KY14 7DP.

 

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

 

1.2       Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. 

1.3       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 

1.4       A reference to any party shall include that party's personal representatives, successors and permitted assignees.

1.5       A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.6       A reference to writing or written does not include fax or email.

 

  1. BASIS OF CONTRACT

    1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

    2. The Order Form shall be deemed to be accepted on the earlier of:

(a)        The Single Cask Bond signing the Order Form; or

(b)        any act by The Single Cask Bond consistent with fulfilling the Order Form as instructed by the Customer,

at which point and on which date the Contract shall come into existence.

  1. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

  1.  STORAGE 

3.1       The Single Cask Bond shall carry out the Services in accordance with the Service Specification and the Order Form.  

3.2       The Single Cask Bond shall not accept any of the following types of items for storage: 

  1. damaged or defective Casks;

  2. Casks otherwise unfit for storage due to a fault of the Cask,

notwithstanding the above, The Single Cask Bond reserves the right to refuse to accept any Cask if, in the sole opinion of The Single Cask Bond, it is not in fit condition for receipt and provision of the Services. 

3.3       The storage of empty Casks to be filled shall be outside of the Premises. The Customer is responsible for insuring the empty Casks and the Single Cask Bond shall accept no liability for their damage or loss, or theft of the empty Casks. 

3.4       The Single Cask Bond reserves the right to regauge any Cask, at the Customer’s expense, within 10 Business Days of the Cask delivered to or arriving at the Premises and/or before or after performing any other Services (at The Single Cask Bond’s discretion). The Single Cask Bond shall notify the Customer (and, if required, HMRC) of any material discrepancy of the spirit quantity after the regauging (“Notice of Discrepancy”). If the Customer fails to respond to the Notice of Discrepancy within 5 Business Days to dispute the quantity and/or seek independent review and/or other action, the Customer is deemed to have accepted the quantity of spirit as set out in the Notice of Discrepancy. The Customer shall still be liable for payment of the charges under clause 8, notwithstanding any dispute to the Notice of Discrepancy by the Customer. 

35        The Single Cask Bond reserves the right to, at the Customer’s expense, perform all repackaging and other repairs and to take all the necessary steps for the preservation of Cask and the protection of other Casks in the Premises. The Single Cask Bond shall not be responsible for any loss or damage suffered or caused as a result of performing such repairs or taking such steps howsoever arising, nor from its failure to exercise such discretionary right.

3.6       The Single Cask Bond reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.

3.7       In providing the Services, The Single Cask Bond shall:

            3.7.1         co-operate with the Customer in          matters relating to the Services and comply with all reasonable instructions of the Customer;

            3.7.2         perform the Services with reasonable care, skill and diligence in accordance with good industry practice in The Single Cask Bond’s industry, profession or trade;

            3.76.3       comply with applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services.

 

  1. DELIVERY 

4.1       Delivery of the Casks shall be made by the Customer to the Premises or otherwise specified in the Order Form, unless otherwise agreed in writing between The Single Cask Bond and the Customer. 

4.2       The Single Cask Bond shall use its reasonable endeavours to meet any performance dates for the Services or Delivery Dates specified in the Order Form or as otherwise agreed in writing by the parties but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

4.3       The Single Cask Bond may arrange the delivery, collection or transportation of the goods and/or the Casks to the Premises for and on behalf of the Customer and shall accept the risk for the Casks during transit. The Customer shall be responsible for arranging the insurance and payment of excise duty prior to the collection of the Casks by The Single Cask Bond. 

4.4       The Customer shall not be entitled to remove or transfer the Casks and/or goods until the Customer has paid in full all sums due to The Single Cask Bond in connection with the Services, including any duties, levies and taxes payable by The Single Cask Bond to the appropriate authority in respect of thereof. 

4.5       No goods or Casks shall be released by The Single Cask Bond to anyone other than the Customer nor The Single Cask Bond shall be bound to recognise a transfer of the goods and/or Casks until an Order Form has been received and acknowledged by The Single Cask Bond. On a transfer of the goods and/or the Casks, this Contract shall apply to the transferee.

4.6       The Customer shall give at least 14 days’ notice of intention to collect or deliver the goods and/or the Casks from and to the Premises.

 

  1. TITLE AND RISK

5.1       Title and risk of loss or damage to the Customer’s owned goods and Casks shall remain with the Customer at all times. 

5.2       The risk of loss or damage in terms of clause 5.1 includes any related liability for excise duty owed to HMRC for the lost or damaged goods and the Customer will indemnify The Single Cask Bond for any such amounts.

5.3       The Customer will ensure that they have insurance cover for their obligations under clause 5.1 with any right for the insurer to bring a subrogated claim against The Single Cask Bond being excluded.

 

  1. LIEN

The Single Cask Bond shall have a special lien on the Customer’s goods and/or Casks for any debts, claims and liabilities for which the Customer is liable to The Single Cask Bond and upon default by the Customer in meeting such debts, claims and liabilities by the due date. The Single Cask Bond may at any time after the date of such default give written notice to the Customer of exercise of its special lien, empowering The Single Cask Bond to sell all or part of the goods and/or the Casks affected by the lien thereby exercised at such price or prices as The Single Cask Bond considers reasonable in order to meet all debts, claims and liabilities due by the Customer to The Single Cask Bond. The Single Cask Bond does not recognise any notice of charge, security, or lien or prior rights of any other third party affecting the Customer’s goods and/or Casks and may treat the Customer in whose name the goods and/or Casks are held as the sole owner of the goods/and or Casks. 

 

 

  1. CUSTOMER'S OBLIGATIONS

    1. The Customer shall:

 

  1. confirm its ownership of the Casks and/or have authorisation on behalf of the owner or owners of the goods to enter into this Contract on these terms;

  2. hold and own the Cask and shall use the spirit in accordance with any relevant rules and/or regulations imposed by HMRC and any other relevant body during the course of this Contract;

  3. complete The Single Cask Bond’s Business Credit Application for a Business Account Form (or any other equivalent as requested by The Single Cask Bond) and warrant by signing the form that all information provided is true and accurate; 

  4. confirm and warrant by signing the Order Form, that they are either a UK based Revenue Trader and are already registered as an Owner of Warehoused Goods in the UK or they are an overseas Revenue Trader and have appointed a UK Duty Representative (terms as specified under HMRC Excise Notice 196);

  5. fully and effectively indemnify The Single Cask Bond and hold The Single Cask Bond harmless against any losses and/or damage and/or expenses howsoever arising from the Customers breach of the warranty at Clause 7.1(c) and 7.1(d) and/or any failure to comply with any legislation, regulation, requirements and/or guidance in this regard;

  6. ensure that the terms of the Order Form and any information it provides in the Service Specification are complete and accurate;

  7. co-operate with The Single Cask Bond in all matters relating to the Services;

  8. provide The Single Cask Bond, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by The Single Cask Bond to provide the Services;

  9. provide The Single Cask Bond with such information and materials as The Single Cask Bond may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

  10. provide The Single Cask Bond with such information as The Single Cask Bond requires in order to comply with their legal obligations and HMRC guidance and/or requirements; 

  11. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

  12. comply with all applicable laws, including health and safety laws;

  13. comply with the necessary HMRC regulations and guidance in respect of Casks and storage of such; 

  14. comply with any additional obligations as set out in the Service Specification and/or the Order Form.

    1. If The Single Cask Bond's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

  1. without limiting or affecting any other right or remedy available to it, The Single Cask Bond shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays The Single Cask Bond's performance of any of its obligations;

  2. The Single Cask Bond shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from The Single Cask Bond's failure or delay to perform any of its obligations as set out in this clause 6.2; and

  3. the Customer shall reimburse The Single Cask Bond on written demand for any costs or losses sustained or incurred by The Single Cask Bond arising directly or indirectly from the Customer Default.

 

  1. PRICE AND PAYMENT TERMS

    1. The charges for the Services shall be as set out in the Order Form.

    2. The Customer shall pay each invoice submitted by The Single Cask Bond as set out in the Order Form and in full and cleared funds to a bank account nominated in writing by The Single Cask Bond and time for payment shall be of the essence.

    3. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by The Single Cask Bond to the Customer, the Customer shall, on receipt of a valid VAT invoice from The Single Cask Bond, pay to The Single Cask Bond such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

    4. If the Customer fails to make a payment due to The Single Cask Bond under the Contract by the due date, then, without limiting The Single Cask Bond's remedies under clause 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.4 will accrue each day at 4% a year above the Bank of Scotland's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

    5. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

  1. LIMITATION OF LIABILITY

    1. The Single Cask Bond shall not be liable to the Customer for any liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with the contents of the Cask or the leakage of the Cask in the Premises.

    2. The Single Cask Bond shall indemnify the Customer against all direct liabilities, costs, expenses, damages and losses (but not including loss of profits, loss of sales/business, loss of agreements/contracts, loss of anticipated savings, loss of or damage to goodwill and any indirect and/or consequential losses) suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, the storage of Casks, to the extent that the defect in the Casks is attributable to the acts or omissions of The Single Cask Bond, its employees, agents or subcontractors.

    3. The Single Cask Bond shall, at its expense, carry product liability and comprehensive general liability insurance coverage of an amount adequate to support its liabilities under this agreement. The Single Cask Bond shall ensure that such insurance policy remains in effect throughout the duration of the Contract and for a period of two (2) years after termination or expiry of the Contract, and shall supply the Customer with a copy of such policy on request.

    4. Nothing in this clause shall restrict or limit the Customer's general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under the indemnity in clause 9.2.

    5. The Single Cask Bond’s total liability arising under or in connection with the Contract whether arising in contract, delict (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the charges paid to The Single Cask Bond as set out in the Order Form in the twelve (12) month period directly preceding such claim.

    6. Nothing in these Conditions shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation.

    7. This clause 9 shall survive termination and/or expiry of the Contract.

  2. TERMINATION

    1. Without affecting any other right or remedy available to it, The Single Cask Bond may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer’s financial position deteriorates to such an extent that in The Single Cask Bond’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

    2. The Single Cask Bond may terminate the Contract for convenience with immediate effect by giving twenty eight (28) days written notice to the Customer.

    3. The Customer may terminate the Contract with immediate effect where The Single Cask Bond is in material breach of the Contract and has not cured the breach, within thirty (30) days after receiving written notice of such breach.

    4. Without affecting any other right or remedy available to it, The Single Cask Bond may terminate the Contract with immediate effect by giving written notice to the Customer if:

  1. the Customer fails to pay any amount due under the Contract on the due date for payment; or

  2. there is a change of control of the Customer.

    1.  Without affecting any other right or remedy available to it, The Single Cask Bond may suspend the supply of Services under the Contract or any other contract between the Customer and The Single Cask Bond if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.1 and 10.3 or The Single Cask Bond reasonably believes that the Customer is about to become subject to any of them.

  1. OBLIGATIONS ON TERMINATION

11.1      On termination of the Contract, each party shall promptly: 

            (a)        return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it in connection with the supply of the Services under the Contract;  

            (b)        return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;  

            (c)        erase all the other party’s Confidential Information from its computer systems (to the extent possible); and  

            (d)        on request, certify in writing to the other party that it has complied with the requirements of this clause 11.

11.2      On termination, the Customer shall: 

            (a) immediately pay the sums due to The Single Cask Bond in accordance with the terms of this Contract; and

            (b) upon payment received and subject to payment being received by The Single Cask Bond of all the sums due, remove, itself or by a third party on its behalf, the Casks and/or the goods from the Premises within 5 Business Days upon payment.

 

  1. CONSEQUENCES OF TERMINATION

12.1      Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

12.2      Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall remain in full force and effect.

  1. ASSIGNATION AND OTHER DEALINGS

            Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

  1. SEVERANCE

            If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

  1. VARIATION

            No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. WAIVER

16.1      A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

16.2      A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

  1. NOTICES

17.1      Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); 

17.2      Any notice shall be deemed to have been received:

            (a)        if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

            (b)        if sent by email on the condition it is followed up by pre-paid first-class post or other next working day delivery service, at 12 noon on the second Business Day after posting or at the time recorded by the delivery service.

17.3      This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  1. ENTIRE AGREEMENT

18.1      The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2      Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

  1. THIRD PARTY RIGHTS

            Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of the Contract.

  1. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”). If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate the Contract by giving fourteen (14) days' written notice to the affected party.

  1. GOVERNING LAW

            The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law. 

  1. JURISDICTION

            Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

 

TERMS AND CONDITIONS FOR PROVISION OF BOTTLING SERVICES

 

 

  1. INTERPRETATION

    1. The following definitions and rules of interpretation apply in the Contract:

 

Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.

 

Cask(s): any portable vessel (whether manufactured out of wood or other materials) into which the spirits are filled, further specified in the Order Form as provided or otherwise delivered by the Customer to the Premises for the purpose of the Services. 

 

Commencement Date: the commencement date as set out in the Order Form.

 

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.

 

Contract: the contract between The Single Cask Bond and the Customer for the supply of Services in accordance with the Order Form and these Conditions. 

 

Customer: the person or firm who purchases the Services from The Single Cask Bond as detailed in the Order Form.


Delivery Address: the address for delivery of the bottled goods, as set out in the Order Form.

 

Delivery Date: the delivery date(s) specified in the Order Form.

 

HMRC: HM Revenue and Customs.

 

Intellectual Property Rights: copyright, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered.

 

Order: the Customer’s order for the supply of Services as set out in the Order Form.

 

Services: the bottling, packaging and labelling services provided by The Single Cask Bond under the Contract as set out in the Order Form and relevant Service Specification.

 

Service Specification: any specification for the Services that are agreed in writing by the Customer and The Single Cask Bond (and set out in the Order Form).

 

The Single Cask Bond: The Single Cask Bond Limited, a company registered in Scotland with company number SC651136 and having its registered office at 5 Station Road, Auchtermuchty, Fife, KY14 7DP.

 

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

 

1.2       Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. 

1.3       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 

1.4       A reference to any party shall include that party's personal representatives, successors and permitted assignees.

1.5       A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.6       A reference to writing or written does not include fax or email.

  1. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2       The Order Form shall be deemed to be accepted on the earlier of:

(a)        The Single Cask Bond signing the Order Form; or

(b)        any act by The Single Cask Bond consistent with fulfilling the Order Form as instructed by the Customer,

at which point and on which date the Contract shall come into existence.

2.3       These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

 

  1.  BOTTLING 

3.1       The Single Cask Bond shall promptly and efficiently carry out the Services in accordance with the Service Specification and the Order Form.  

3.2       At least 7 days before the scheduled date for bottling, the Customer shall deliver to The Single Cask Bond any and all materials (including labels, packaging etc.) that is to be used during the bottling process. The scheduled date for bottling is an estimate only and time shall not be the essence for the performance of the Services. 

3.3       If the Customer has not complied with clause 3.2 above a minimum of seven (7) days before the scheduled date for bottling, The Single Cask Bond shall discuss the matter with the Customer and both parties shall make reasonable efforts to agree corrective action and the cost to the Customer of that corrective action and/or delay in the scheduled date for bottling. 

3.4       Where the Customer is supplying its own labelling, such labels must be sent to The Single Cask Bond no later than seven (7) days before the scheduled date for bottling to allow The Single Cask Bond to ensure the spirit complies with the stated information on the labels. Where this is not the case, the Customer shall have to correct such labels before the scheduled bottling date. 

3.5       The Single Cask Bond reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement or if the amendment will not materially affect the nature or quality of the Services.

3.6       The Single Cask Bond reserves the right to regauge any Casks, at the Customer’s expense, before or after performing any Services (at The Single Cask Bond’s discretion). The Single Cask Bond shall notify the Customer (and, if required, HMRC) of any material discrepancy of the spirit quantity after the regauging (“Notice of Discrepancy”). If the Customer fails to respond to the Notice of Discrepancy within 5 Business Days to dispute the quantity and/or seek independent review and/or other action, the Customer is deemed to have accepted the quantity of spirit as set out in the Notice of Discrepancy. The Customer shall still be liable for payment of the charges under clause 7 notwithstanding any dispute to the Notice of Discrepancy by the Customer.   

3.7In providing the Services, The Single Cask Bond shall:

            3.7.1         co-operate with the Customer in matters relating to the Services and comply with all reasonable instructions of the Customer;

            37.2          perform the Services with reasonable care, skill and diligence in accordance with best practice in The Single Cask Bond’s industry, profession or trade;

            

            3.7.3         comply with applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services.

 

  1. DELIVERY 

4.1       Delivery of the bottled goods shall be made by The Single Cask Bond to the Customer at the Delivery Address specified in the Order Form, unless otherwise agreed in writing between The Single Cask Bond and the Customer. 

4.2       The Single Cask Bond shall use its reasonable endeavours to meet any performance dates for the Services or Delivery Dates specified in the Order Form or as otherwise agreed in writing by the parties but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

4.3       If the Customer fails to accept and/or take delivery of the bottled goods and/or fails to collect the bottled goods within 5 Business Days, The Single Cask Bond may charge the Customer at a rate of £2.50 per pallet per week or such other rate as set out in the Order Form to store the bottled goods until they can be delivered to or are uplifted by the Customer.

4.4       If the Customer fails to collect the empty Cask(s) within 4 weeks of of completion of the bottling, The Single Cask Bond reserves the right to dispose of the empty Casks. Time is of the essence in relation to the obligations upon the Customer under clauses 4.4 and 4.5.

4.5       If the Customer, requests the refill of an empty Cask after the completion of the bottling, the Customer shall deliver the spirit to be refilled to the Premises within 14 days of the completion of bottling. The Single Cask Bond reserves the right to refuse to refill any empty Cask, if the Customer failed to meet the above delivery date. 

 

  1. TITLE AND RISK

5.1       Title and risk of loss or damage to the Customer owned goods and all finished bottled goods shall remain with the Customer at all times.  

5.2       The risk of loss or damage in terms of clause 5.1 includes any related liability for excise duty owed to HMRC for the lost or damaged goods and the Customer will indemnify The Single Cask Bond for any such amounts.

5.3       The Customer will ensure that they have insurance cover for their obligations under clause 5.1 with any right for the insurer to bring a subrogated claim against The Single Cask Bond being excluded.

  1. CUSTOMER'S OBLIGATIONS

    1. The Customer shall:

 

  1. ensure that the terms of the Order Form and any information it provides in the Service Specification are complete and accurate;

  2. complete The Single Cask Bond’s Business Credit Application for a Business Account Form (or any other equivalent as requested by The Single Cask Bond)  and warrant by signing the form that all information provided is true and accurate; 

  3. confirm and warrant by signing the Order Form, that  it is either a UK based Revenue Trader and  already registered as an Owner of Warehoused Goods in the UK or  it is an overseas Revenue Trader and has appointed a UK Duty Representative (terms as specified under HMRC Excise Notice 196);

  4. fully and effectively indemnify The Single Cask Bond and hold The Single Cask Bond harmless against any losses and/or damage and/or expenses howsoever arising from the Customer’s breach of the warranty at clauses 6.1(c) and 6.1(d) and/or any failure to comply with any legislation, regulation, requirements and/or guidance in this regard;

  5. co-operate with The Single Cask Bond in all matters relating to the Services;

  6. provide The Single Cask Bond, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by The Single Cask Bond to provide the Services;

  7. provide The Single Cask Bond with such information and materials as The Single Cask Bond may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

  8. provide The Single Cask Bond with such information as The Single Cask Bond requires in order to comply with  its  legal obligations and HMRC guidance and/or requirements; 

  9. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

  10. comply with all applicable laws, including health and safety laws;

  11. comply with any additional obligations as set out in the Service Specification and/or the Order Form; 

  12. arrange the collection, itself or by a third party on its behalf,  of the empty Cask(s) within 4 weeks of being notified of the completion of the relevant bottling and/or Services.

    1. If The Single Cask Bond's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

  1. without limiting or affecting any other right or remedy available to it, The Single Cask Bond shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays The Single Cask Bond's performance of any of its obligations;

  2. The Single Cask Bond shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from The Single Cask Bond's failure or delay to perform any of its obligations as set out in this clause 6.2; and

  3. the Customer shall reimburse The Single Cask Bond on written demand for any costs or losses sustained or incurred by The Single Cask Bond arising directly or indirectly from the Customer Default.

  1. PRICE AND PAYMENT TERMS

7.1       The charges for the Service shall be as set out in the Order Form.

7.2       The Customer shall pay each invoice submitted by The Single Cask Bond as set out in the Order Form and in full and cleared funds to a bank account nominated in writing by The Single Cask Bond and time for payment shall be of the essence.

7.3       All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by The Single Cask Bond to the Customer, the Customer shall, on receipt of a valid VAT invoice from The Single Cask Bond, pay to The Single Cask Bond such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.4       If the Customer fails to make a payment due to The Single Cask Bond under the Contract by the due date, then, without limiting The Single Cask Bond's remedies under clause 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.4 will accrue each day at 4% a year above the Bank of Scotland's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.5       All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. INTELLECTUAL PROPERTY RIGHTS

8.1 The Single Cask Bond shall not, except as expressly permitted under these Conditions, use any of the Intellectual Property Rights or any variations of any of the Intellectual Property Rights without the Customer’s prior written consent.

8.2 The Single Cask Bond acknowledges that all Intellectual Property Rights are the sole and exclusive property of the Customer.  The Single Cask Bond shall not make usage of the Intellectual Property Rights except as permitted under these Conditions.  After termination or cancellation of the Contract, The Single Cask Bond shall make no usage of the Intellectual Property Rights.

8.3 The restrictions contained in this Clause 8 relative to the use of the Intellectual Property Rights shall continue notwithstanding termination of the Contract.

8.4 The Customer confirms that it is the owner of or has the right to use the Intellectual Property Rights. The Customer confirms that it is duly authorised to permit The Single Cask Bond to use the Intellectual Property Rights on the terms set out in these Conditions.

  1. LIMITATION OF LIABILITY

9.1 The Single Cask Bond shall not be liable to the Customer for any liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with the compounding and sale of the bottled goods.

9.2 The Single Cask Bond shall indemnify the Customer against all direct liabilities, costs, expenses, damages and losses (but not including loss of profits, loss of sales/business, loss of agreements/contracts, loss of anticipated savings, loss of or damage to goodwill and any indirect and/or consequential losses) suffered or incurred by the Customer arising out of or in connection with:   

(a)  any claim made against the Customer by a third party arising out of, or in connection with, the supply of the bottled products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by The Single Cask Bond, its employees, agents or subcontractors; and

(b)  any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defective bottled products, to the extent that the defect in the bottled products is attributable to the acts or omissions of The Single Cask Bond, its employees, agents or subcontractors.

9.3       The Single Cask Bond shall, at its expense, carry product liability and comprehensive general liability insurance coverage of an amount adequate to support its liabilities under this agreement. The Single Cask Bond shall ensure that such insurance policy remains in effect throughout the duration of the Contract and for a period of two (2) years after termination or expiry of the Contract, and shall supply the Customer with a copy of such policy on request.

9.4       Nothing in this clause shall restrict or limit the Customer's general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under the indemnity in clause 9.2.

9.5       The Single Cask Bond’s total liability arising under or in connection with the Contract whether arising in contract, delict (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the charges paid to The Single Cask Bond as set out in the Order Form.

9.6       Nothing in these Conditions shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.

9.7       This clause 9 shall survive termination and/or expiry of the Contract.

  1. TERMINATION

10.1      Without affecting any other right or remedy available to it, The Single Cask Bond may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer’s financial position deteriorates to such an extent that in The Single Cask Bond’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

10.2        The Single Cask Bond may terminate the Contract for convenience with immediate effect by giving thirty (30) days written notice to the Customer.

10.3      The Customer may terminate the Contract with immediate effect where The Single Cask Bond is in material breach of the Contract and has not cured the breach, within thirty (30) days after receiving written notice of such breach.

10.4      Without affecting any other right or remedy available to it, The Single Cask Bond may terminate the Contract with immediate effect by giving written notice to the Customer if:

  1. the Customer fails to pay any amount due under the Contract on the due date for payment; or

  2. there is a change of control of the Customer.

10.5      Without affecting any other right or remedy available to it, The Single Cask Bond may suspend the supply of Services under the Contract or any other contract between the Customer and The Single Cask Bond if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.1 and 10.3 or The Single Cask Bond reasonably believes that the Customer is about to become subject to any of them.

  1. OBLIGATIONS ON TERMINATION

11.1      On termination of the Contract, each party shall promptly: 

            (a)        return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it in connection with the supply of the Services under the Contract;  

            (b)        return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;  

            (c)        erase all the other party’s Confidential Information from its computer systems (to the extent possible); and  

            (d)        on request, certify in writing to the other party that it has complied with the requirements of this clause 11.

11.2      On termination, the Customer shall: 

            (a) immediately pay the sums due to The Single Cask Bond in accordance with the terms of this Contract; and

            (b) upon payment received and subject to payment received by The Single Cask Bond of all the sums due, remove, itself or by a third party on its behalf, the Casks and/or the goods from the Premises within 5 Business Days.

 

  1. CONSEQUENCES OF TERMINATION

12.1      Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

12.2      Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall remain in full force and effect.

  1. ASSIGNATION AND OTHER DEALINGS

            Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

  1. SEVERANCE

            If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

  1. VARIATION

            No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. WAIVER

16.1      A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

16.2      A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

  1. NOTICES

17.1      Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); 

17.2      Any notice shall be deemed to have been received:

            (a)        if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

            (b)        if sent by email on the condition it is followed up by pre-paid first-class post or other next working day delivery service, at 12 noon on the second Business Day after posting or at the time recorded by the delivery service.

17.3      This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

  1. ENTIRE AGREEMENT

18.1      The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2      Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

  1. THIRD PARTY RIGHTS

            Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of the Contract.

  1. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”). If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate the Contract by giving fourteen (14) days' written notice to the affected party.

  1. GOVERNING LAW

            The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law. 

  1. JURISDICTION

            Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

circumstances or causes beyond its reasonable control (a “Force Majeure Event”). If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate the Contract by giving fourteen (14) days' written notice to the affected party.

  1. GOVERNING LAW

            The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law. 

  1. JURISDICTION

            Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

Address: 

5 Station Road, 

Auchtermuchty, 

Fife, Scotland, 

KY14 7DP

©2020 by The Single Cask Bond.