TERMS AND CONDITIONS – CASKS
1.1 These Terms and Conditions govern your use of our website www.therarewhiskyshop.com (the “Platform”). The Buyer agrees to comply with these Terms and Conditions at all times when using the Platform.
1.2 By using our website, the Buyer is entering into a contract with Global Whisky Limited, a company with its registered office at 11 Somerset Place, Glasgow, Scotland, G3 7JT and company number SC577772 (“Global Whisky”).
1.3 In these Terms and Conditions, “Cask” shall mean a cask of whisky that is subject to a Transaction and its contents.
1.4 The Platform is a marketplace which allows Global Whisky to sell whisky casks. These Terms and Conditions govern the purchase and sale of Casks of whisky and set out the entire relationship between the party buying (the “Buyer”) and Global Whisky, the seller. Both parties agree to comply with these Terms and Conditions at all times when buying and/or selling Casks (a “Transaction”) at an agreed price (the “Selling Price”). Each Transaction shall form and constitute a distinct contract between the Buyer and Global Whisky.
1.5 All Casks sold on the Platform are under bond. If you bottle a cask of whisky, duties will accrue according to the tax law in the country of consumption. It is the Buyer’s responsibility to satisfy themselves as to the duties or taxes which apply to any purchase they make on the Platform, or which arise in connection with any Transaction.
2 ACCOUNT REGISTRATION
2.1 The Buyer may access certain parts of the Platform without creating an account. In this case, the Buyer will nonetheless be bound by these Terms and Conditions.
2.2 By using the Platform the Buyer is warranting to Global Whisky that: (i) the Buyer is at least 18 years old; (ii) the Buyer has not previously had a registration application declined or account involuntarily terminated; (iii) the Buyer does not already have an account for the Platform; and (iv) the Buyer is using the Platform for commercial purposes only and not in their capacity as a consumer.
2.3 Global Whisky may restrict the Buyer’s access to the Platform in whole or in part at its discretion.
2.4 The Buyer must keep their login details confidential and must not allow anybody else to access their account.
2.5 The Buyer is solely responsible and liable for all activities undertaken by their account.
2.6 If the Buyer submits inaccurate information to the Platform, Global Whisky may suspend or terminate their account.
2.7 Global Whisky may suspend or terminate any accounts which Global Whisky deems to be in violation of any of these Terms.
2.8 The Buyer may terminate their account by contacting email@example.com.
2.9 Where the Buyer’s account is terminated, their personal information and their contributions to the Platform shall be deleted.
3 PLATFORM USE
3.1 The Buyer may not:
3.1.1 use the Platform in any improper or unlawful manner or for improper or unlawful purposes; or
3.1.2 act in a manner that would cause damage to Global Whisky, the Platform or another user.
3.2 The Buyer must comply with any instructions that Global Whisky gives regarding their use of the Platform.
3.3 The Buyer is responsible for the actions of any person logging into the Platform using their account details.
3.4 The Buyer may not post or submit any content to the Platform which:
3.4.1 is discriminatory, racially offensive, abusive, offensive, threatening, intimidating, inaccurate, incomplete, obscene, profane, sexually explicit, harassing or illegal;
3.4.2 infringes any other person’s rights, including intellectual property rights and right of privacy;
3.4.3 is inaccurate, misleading, untruthful or defamatory;
3.4.4 is intended to solicit or obtain information about another user of the Platform;
3.4.5 contains advertising or promotional content except where clearly permitted on the Platform;
3.4.6 contains harmful viruses, worms or other software;
3.4.7 contains a link to illegal or inappropriate material; or
3.4.8 consists of any activities similar to those described above.
3.5 The Platform is for commercial use only. No individual may use the Platform in their capacity as a consumer.
3.6 Users should report any suspected misuse of the Platform to firstname.lastname@example.org.
4 ORDER PROCESS
4.1 The Buyer may only use the Platform to make genuine enquiries and orders. Global Whisky shall be entitled to delete all enquiries and orders which Global Whisky suspects are not genuine. Global Whisky may terminate the account of any user who submits a non-genuine enquiry.
4.2 The Buyer may not use the Platform to conduct market surveys or price checks.
4.3 The Buyer will be required to submit certain information when they complete the online order process including their full name, address, email address and, where the Buyer is a company, the company’s name, registered number and registered address.
4.4 An order shall be placed when the Buyer completes the check-out process on the Platform (the “Order Date”).
4.5 When the Buyer completes the online order process, Global Whisky shall send an email confirming receipt of the order. The email does not constitute acceptance of the order.
5.1 Payments can be made by credit card using the Platform check out system.
5.2 Payments can be made by bank transfer using the Platform check out system, in which case Global Whisky will email the Buyer the relevant bank account information.
5.3 Global Whisky may require the Buyer to pay an advance deposit to secure an order. The online order process shall make clear the details of any deposit. Deposit payments will be forfeited if the Buyer elects to withdraw an offer once submitted or commits a breach of these Terms and Conditions.
5.4 Payment for the Cask(s) must be made to Global Whisky in full before ownership of the cask(s) can be transferred.
5.5 Payments must be made in full to Global Whisky within the timescales set out in the cask listing or, if no such terms are set out in the cask listing, within seven days of the Order Date. If payment is not received within such timescales Global Whisky may elect to cancel the order. The Buyer shall be liable to Global Whisky for any costs incurred in connection with a cancelled order and any deposit paid by the Buyer shall be surrendered.
6 PROHIBITION ON OFF-PLATFORM DEALING
The Platform is intended to operate as an exclusive marketplace for its users to buy and sell casks of whisky. If the Buyer engages, or seeks to engage, any other user of the Platform for such purposes on any medium except the Platform, the Buyer shall be acting in breach of these Terms and Conditions.
7 THE WAREHOUSEKEEPERS AND OWNERS GOODS REGULATIONS (“WOWGR”)
7.1 Global Whisky is a UK trader of Duty Suspended goods held in Excise Warehouses and holds the required WOWGR Registration Certificate from HMRC.
7.2 The Buyer confirms that they are either:
7.2.1 not a UK trader of Duty Suspended goods held in Excise Warehouses; or
7.2.2 are a UK trader of Duty Suspended goods held in Excise Warehouses and hold the necessary WOWGR certificate; and
7.2.3 in which case the Buyer warrants that they will provide suitable copies to Global Whisky.
7.3 The Buyer shall provide valid photographic identification and proof of address documentation to Global Whisky (and company information if the Buyer is a company) in order that Global Whisky can carry out due diligence on the Buyer, as required by HMRC.
8 CASK QUALITY
8.1 Global Whisky shall ensure that Cask(s) supplied to the Buyer under these Terms and Conditions shall:
8.1.1 conform to the specification of the Cask on the Platform’s cask listing (including distillery, year, age, cask number, location, regauge litre of alcohol, regauge date and alcohol by volume); and
8.1.2 comply with all applicable statutory and regulatory requirements.
8.2 Global Whisky and the Buyer shall each obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to supply and purchase the Cask(s) in accordance with these Terms and Conditions.
8.3 If, as a result of information provided by Global Whisky in accordance with paragraph 8 or otherwise, the Buyer reasonably considers that the Cask is not or is not likely to be as described in the cask listing, the Buyer shall inform Global Whisky and:
8.3.1 if the issue is remediable, Global Whisky shall immediately take such action as is necessary to ensure that the Cask is or will be as described under paragraph 8.1; or
8.3.2 if the issue is not remediable, the Buyer shall have the right to terminate the Transaction.
8.4 Any dispute concerning whether an issue arising under paragraph 8.3 is remediable shall be managed in accordance with paragraph 16.
8.5 Global Whisky shall be responsible for paying all outstanding rent and associated fees with the Site up until the Transfer Date.
8.6 The Buyer shall be responsible for paying any storage fees or other fees charged by the Site after the Transfer Date.
8.7 Global Whisky shall be responsible for the cost of any transfer fee charged by the Site.
9 DELIVERY ORDER
9.1 Global Whisky shall, within three working days of receiving the full Selling Price funds, prepare a populated delivery order and send to the Buyer by email.
9.2 The Buyer shall, within five working days of receiving the populated delivery order from Global Whisky:
9.2.1 prepare and sign the buyer part of a delivery order (the “Buyer Part”) which, when considered alongside the Seller Part (together being the “Delivery Order”), shall be sufficient so as to transfer ownership of the cask to the Buyer on acknowledgement by the bonded warehouse or distillery at which the cask is located (the “Site”);
9.2.2 provide Global Whisky with the original signed copy of the Buyer Part.
9.3 Global Whisky shall, within three working days from receiving the Buyer Part from the Buyer:
9.3.1 prepare and sign the seller part of a delivery order (the “Seller Part”) which, when considered alongside the Buyer Part (together being the “Delivery Order”), shall be sufficient so as to transfer ownership of the cask to the Buyer on acknowledgement by the bonded warehouse or distillery at which the cask is located (the “Site”);
9.3.2 send the original signed Delivery Order to the Site to request transfer of ownership of the cask to the Buyer;
9.3.3 use reasonable endeavours to procure confirmation from the operator of the Site that the Delivery Order is accepted and that ownership of the cask has transferred from Global Whisky to the Buyer; and
9.3.4 provide the Buyer with such confirmation.
9.4 In the event that the Buyer fails to comply with the obligations set out in paragraph 9.2 within ten working days of the Order Date for any reason:
9.4.1 Global Whisky may elect to cancel the order by notifying the Buyer by email or otherwise in writing;
9.4.2 Global Whisky shall not be liable to the Buyer for any loss or costs incurred in relation to the order irrespective of whether Global Whisky elects to cancel it.
10.1 The Buyer may request a refund of the Transaction at any time before signing the Buyer Part of the Delivery Order. Requests should be sent by email to email@example.com.
10.2 The Buyer accepts that they forfeit their right to a refund once they sign and provide the Buyer Part of the Delivery Order to Global Whisky.
11 TITLE AND RISK
Title and risk in the Cask shall pass to the Buyer when the operator of the Site at which the Cask is located acknowledges receipt of a properly prepared Delivery Order (the “Transfer Date”) in accordance with paragraph 9.3. Global Whisky shall notify the Buyer immediately following such acknowledgement.
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”) except as permitted by paragraph 12.2.
12.2 Each party may disclose the other party’s Confidential Information:
12.2.1 to its employees, officers, agents, consultants or subcontractors who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Terms and Conditions; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Global Whisky shall maintain in force insurance policies with reputable insurance companies sufficient to cover its liabilities in respect of each Transaction under these Terms and Conditions.
14 LIMITATION OF LIABILITY
14.1 This paragraph sets out the entire financial liability of the Buyer and Global Whisky (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of any breach of these Terms and Conditions and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms and Conditions.
14.2 Nothing in these Terms and Conditions shall limit or exclude the liability of either party for:
14.2.1 death or personal injury resulting from negligence;
14.2.2 fraud or fraudulent misrepresentation;
14.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
14.2.4 the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
14.3 Subject to paragraph 14.2, Global Whisky will not be liable to the Buyer, whether in contract, delict, tort, breach of statutory duty, or otherwise in connection with these Terms and Conditions for:
14.3.1 loss of profits;
14.3.2 loss of sale or business;
14.3.3 loss of agreements or contracts;
14.3.4 loss of anticipated savings;
14.3.5 loss of use or corruption of software, data or information;
14.3.6 loss or damage to goodwill; or
14.3.7 any indirect or consequential loss.
14.4 Except as expressly stated in these Terms and Conditions, Global Whisky does not give any representations, warranties or undertakings in relation to the Platform.
14.5 Where permitted by law, Global Whisky shall have no liability to the Buyer in respect of their use of the Platform.
14.6 Subject to paragraphs 14.2 and 14.3, Global Whisky’s liability to the Buyer in relation to Global Whisky’s position as operator of the Platform, shall be capped at £1,000.
14.7 Without prejudice to paragraph 14.2 or paragraph 14.3, the total liability of each of the Buyer and Seller arising under or in connection with any Transaction, whether arising in contract, delict, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited to 110% of the Selling Price of the Casks agreed between the Buyer and Global Whisky.
15 ASSIGNATION AND OTHER DEALINGS
15.1 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 these Terms and Conditions without the prior written consent of the other party.
Without affecting any other right or remedy available to it, either party may terminate a Transaction with immediate effect by giving written notice to the other party if:
16.1 the other party fails to pay any undisputed amount due under these Terms and Conditions on the due date for payment and remains in default not less than ten days after being notified in writing to make such payment;
16.2 the other party commits a material breach of any other term of these Terms and Conditions which breach is irremediable or and (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified in writing to do so;
16.3 the other party repeatedly breaches any of the terms of these Terms and Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms and Conditions;
16.4 the other party 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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
16.5 the other party 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 any of its creditors;
16.6 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 other party;
16.7 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 other party;
16.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
16.9 a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
16.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraph 16.1 to paragraph 16.9 (inclusive);
16.11 the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
16.12 any force majeure event prevents the other party from performing its obligations under these Terms and Conditions for any continuous period of three months.
17.1 If a dispute arises out of or in connection with these Terms and Conditions, a Transaction or the performance, validity or enforceability of it (a “Dispute”) then the parties shall follow the procedure set out in this paragraph 17.1:
17.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, representatives of the Buyer and Global Whisky shall attempt in good faith to resolve the Dispute;
17.1.2 if the representatives are for any reason unable to resolve the Dispute within thirty days of it being referred to them, the parties shall be free to commence court proceedings in relation to the Dispute.
18 INTELLECTUAL PROPERTY
18.1 All intellectual property rights in and to the Platform shall remain the property of Global Whisky, with the exception of user submitted content containing that user’s intellectual property rights.
18.2 Where the Buyer uploads any content containing their intellectual property rights to the Platform, the Buyer grants Global Whisky the indefinite right to reproduce, display, modify, manage, distribute and store their intellectual property rights as part of, or for promotion of, the Platform. Global Whisky is under no obligation to compensate the Buyer for any use Global Whisky makes of their intellectual property rights under these Terms and Conditions.
18.3 If the Buyer prints off, copies or downloads any part of the Platform which breaches any of these Terms and Conditions, their right to use the Platform will cease immediately and the Buyer must, at Global Whisky’s option, return or destroy any copies of the materials the Buyer has made.
19.1 Global Whisky does not make any representation or warranty of any kind, either express or implied, in relation to the Platform or any content, products and services provided through it including, without limitation, any warranties in relation to fitness for a particular purpose or in relation to the quality, completeness, accuracy or reliability of the Platform and all content, products and services provided through it.
19.2 Global Whisky does not guarantee that the Platform will always be available or error free; that defects will be corrected; or that the Platform or the server that makes it available are or will be free of viruses or other harmful components.
19.3 Global Whisky reserves the right to withdraw or discontinue any product or service at any time at its sole discretion.
20 THIRD PARTY LINKS AND RESOURCES
Where the Platform contains links to other sites and resources provided by third parties, these links are provided for information only. Global Whisky assumes no responsibility for the conduct of other users or the content of websites linked to the Platform. Links to websites should not be interpreted as endorsement by Global Whisky of those linked websites. Global Whisky will not be liable for any loss or damage arising from the Buyer’s reliance on the Platform users or the Buyer’s use of linked websites.
21 LINKING TO OUR WEBSITE
The Buyer may link to our home page, provided the Buyer does so in a way that is fair and legal and does not damage Global Whisky’s reputation or take advantage of it. The Buyer must not establish a link in such a way as to suggest any form of association, approval or endorsement on the part of Global Whisky where none exists. The Platform must not be framed on any other site, nor may the Buyer create a link to any part of the Platform other than the home page. Global Whisky reserves the right to withdraw linking permission without notice.
22.1 Global Whisky does not guarantee that its Platform will be secure or free from bugs or viruses.
22.2 The Buyer is responsible for configuring their information technology, computer programmes and platform to access the Platform. The Buyer should use their own virus protection software.
22.3 The Buyer must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. The Buyer must not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. The Buyer must not attack the Platform via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, the Buyer would commit a criminal offence under the Computer Misuse Act 1990. Global Whisky will report any such breach to the relevant law enforcement authorities and Global Whisky will co-operate with those authorities by disclosing the Buyer’s identity to them. In the event of such a breach, the Buyer’s right to use the Platform will cease immediately.
23.1 Termination of a Transaction will not affect rights and remedies that have accrued at termination.
23.2 These Terms and Conditions set out the entire agreement between the Buyer and Global Whisky in respect of the Cask(s) and replace any previous agreements or understandings.
23.3 These Terms and Conditions do not create or infer any rights that are enforceable by any person who is not party to them.
23.4 Any notice or communication given under or in connection with these Terms and Conditions must be in writing. For the avoidance of doubt, communication by email is valid.
23.5 Neither the Buyer nor Global Whisky shall transfer any rights or obligations under these Terms and Conditions to any other person without the consent of the other party.
23.6 Where one provision of these Terms and Conditions is unenforceable, it shall not affect the validity of the rest of these Terms and Conditions.
23.7 The Buyer and Global Whisky shall process personal data received under and/or in connection with these Terms and Conditions each as a separate and independent controller. In no event shall the parties process personal data under and/or in connection with these Terms and Conditions as joint controllers or in a controller-to-processor relationship. As such separate and independent controllers, each party shall be individually and separately responsible for complying with the obligations that apply to them as a controller under applicable data protection laws.
23.8 Where the Buyer enters into, or attempts to enter into, a Transaction on behalf of a company, that party undertakes and warrants to the other that it is authorised to do so.
23.9 To comply with its legal obligations, Global Whisky may require the Buyer to provide documentation for certain purposes connected with their use of the Platform, including verification of their identity and confirmation that Global Whisky is not prohibited from dealing with the Buyer as a result of UK sanctions.
23.10 The Buyer shall indemnify Global Whisky for any loss incurred by Global Whisky in connection to (i) their use of the Platform; (ii) their failure to comply with these Terms and Conditions.
23.11 Global Whisky may at any time, without notice, set off any liability of the Buyer to them against any liability of Global Whisky to the Buyer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these Terms and Conditions. Any exercise by Global Whisky of its rights under this paragraph shall not limit or affect any other rights or remedies available to them under these Terms and Conditions or otherwise
23.12 Global Whisky may remove the Platform, cease the provision of any of the services made available through it, or terminate any membership of the Platform and the agreement between the Buyer and Global Whisky at any time at its sole discretion for any reason.
23.13 Termination of the agreement between the Buyer and Global Whisky will not affect either party’s rights or remedies that have accrued at termination.
23.14 It is the Buyer’s responsibility to satisfy themselves as to the application of any alcohol duties or similar taxes. To the extent legally possible, Global Whisky shall not be responsible for any duties or taxes arising in connection with purchases made through the Platform.
24 APPLICABLE LAW
These Terms and Conditions, their subject matter and their formation (and any non-contractual disputes or claims) are governed by the law of Scotland. Both parties agree to the exclusive jurisdiction of the Scottish courts.