1.1 These Terms and Conditions govern your use of our website www.therarewhiskyshop.com (the “Platform”) and set out the entire relationship between you and us. You agree to comply with these Terms and Conditions at all times when using the Platform.
1.2 By registering to use our website, you are entering into a contract with us, Global Whisky Limited, a company with its registered office at 11 Somerset Place, Glasgow, Scotland, G3 7JT and company number SC577772.
1.3 The Platform is a marketplace which allows users to buy and sell whisky casks. Global Whisky does not own the casks listed on the Platform. Any sales you make through the Platform shall be governed by separate Terms of Sale which shall form a contract between you and the Platform user who purchases the cask (the “Buyer”). Our Terms of Sale are available here.
1.4 The Platform is for the sale of whisky casks under bond. If you bottle a cask of whisky, duties will accrue according to the tax law in the country of consumption. It is your responsibility to satisfy yourself as to the duties or taxes which apply to any sale you make on the Platform.
2 ACCOUNT REGISTRATION
2.1 You may access certain parts of the Platform without creating an account. In this case, you will nonetheless be bound by these Terms and Conditions.
2.2 You will need to register with us in order to sell casks, or list any casks for sale, on the Platform. If you are not already registered, you will be required to register when you complete a cask listing form.
2.3 By applying for registration on the Platform you are warranting to us that: (i) you are at least 18 years old; (ii) you have not previously had a registration application declined or account involuntarily terminated; (iii) you do not already have an account for the Platform; and (iv) you are using the Platform for commercial purposes only and not in your capacity as a consumer.
2.4 We may restrict your access to the Platform in whole or in part at our discretion.
2.5 You must keep your login details confidential and must not allow anybody else to access your account.
2.6 You are solely responsible and liable for all activities undertaken by your account.
2.7 If you submit inaccurate information to the Platform, we may suspend or terminate your account.
2.8 We may suspend or terminate any accounts which we deem to be in violation of any of these Terms.
2.9 You may terminate your account by contacting email@example.com.
2.10 Where your account is terminated, your personal information and your contributions to the Platform shall be deleted.
3 PLATFORM USE
3.1 You 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 us, the Platform or another user.
3.2 You must comply with any instructions that we give regarding your use of the Platform.
3.3 You are responsible for the actions of any person logging into the Platform using your account details.
3.4 You 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 similar activities 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 Global Whisky does not endorse, or recommend conducting business with, any particular Platform user. Before selling any casks on the Platform, you should satisfy yourself in all regards concerning the Buyer.
3.7 Users should report any suspected misuse of the Platform to firstname.lastname@example.org.
4 CASK LISTINGS
4.1 You may list casks for sale by completing the online listing form, available at www.therarewhiskyshop.com/sell-your-whisky-cask. This will require you to provide the following information:
4.1.1 information required for verification of your identity, including: your full name, address, contact details, photo identification and, where the owner is a company, the company’s name, registered number and registered address;
4.1.2 information required for the cask listing, including: distillery; year; age; cask number; location; re-gauge litre of alcohol; re-gauge date, alcohol by volume and tasting notes; and
4.1.3 information required for the sale of the casks, including: bank account details and any payment terms requirements (including any deposits to be payable by the Buyer).
4.2 On receipt of a completed online listing form, we shall:
4.2.1 discuss and agree payment terms with you including the agency fee that shall be payable to Global Whisky by the Buyer; and
4.2.2 prepare a draft listing for your review. We may also contact you to discuss any further information that is required or adjustments we would propose.
4.3 Once we have agreed the agency fee and the contents of the draft listing, we shall provide you with a copy of our proposed final draft of the listing for your approval by e-signature.
4.4 At the time of approving each listing, you must confirm to us:
4.4.1 that you own the cask and are able to grant its sale;
4.4.2 that the cask is still available for sale;
4.4.3 that the listing on the Platform accurately describes the cask; and
4.4.4 that you are prepared to sell the cask on the basis of the Terms of Sale.
4.5 If you are unable to give the confirmations set out in paragraph 4.4, Global Whisky shall have no liability to you for any loss incurred.
4.6 On receipt of your approval and the confirmations set out in paragraph 4.4, we shall upload the listing to the Platform where it shall be available to prospective Buyers.
4.7 We shall have no liability to you for any costs incurred in the event that we are unable to reach agreement on the agency fee or draft listing.
4.8 You may only use the Platform to make genuine listings. We shall be entitled to delete all listings and requested listings which we suspect are not genuine. We may terminate the account of any user who submits a non-genuine listing.
4.9 You may not use the Platform to conduct market surveys or price checks.
5 SALES PROCESS
5.1 When an order is received from a prospective Buyer, we will notify you. Any information we provide about the order is supplied by the prospective Buyer and we give no guarantee of its accuracy.
5.2 Within 48 hours of us giving you notice of an order pursuant to paragraph 5.1, you must confirm to us by email (or otherwise in writing) whether the order is accepted by you.
5.3 Following your confirmation that a Buyer’s order has been accepted, we shall provide you with a purchase order, containing the terms between you and the Buyer governing the sale of the cask, by email.
5.4 Following your confirmation that a Buyer’s order has been accepted, we shall issue the Buyer with an invoice for payment of the cask purchase price including Global Whisky’s agency fee. If we do not receive payment of this invoice in accordance with the payment terms set out in the cask listing (or, if no such terms are set out in the cask listing, within 14 days of issue to the Buyer), we shall notify you and you shall have the right to cancel the order. We will not be liable to you for any loss or costs incurred in respect of an order which is cancelled pursuant to this paragraph 5.4.
5.5 Following receipt of the cask purchase price and agency fee from the Buyer pursuant to paragraph 5.4, we shall notify you of such receipt and you shall, within seven days of such notification:
5.5.1 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”);
5.5.2 provide the Buyer with the buyer part of a delivery order (the “Buyer Part”) which, when considered alongside the Seller Part, shall be sufficient so as to transfer ownership of the cask to the Buyer on acknowledgement by the Site;
5.5.3 deliver the signed Delivery Order to the Site;
5.5.4 use best endeavours to procure confirmation from the operator of the Site that the Delivery Order is accepted and that ownership of the cask has transferred to the Buyer; and
5.5.5 provide the Buyer and us with such confirmation.
5.6 On receipt of the Buyer Part from you in accordance with paragraph 5.5.2, the Buyer shall be required to complete, sign and return the Buyer Part to you within 48 hours.
5.7 Global Whisky may provide you with a populated or unpopulated template Delivery Order and may assist with sending the Delivery Order to the Site. It is, however, your responsibility to ensure that the Delivery Order is signed, delivered to the Site, accurate and sufficient for the purposes of paragraph 5.5. We do not give any guarantee that any template Delivery Order provided by us is accurate or sufficient for such purposes.
5.8 In the event that you fail to comply with the obligations set out in paragraph 5.5 within 14 days of our notification for any reason other than as a result of the Buyer’s failure to return the Buyer Part in accordance with paragraph 5.6:
5.8.1 the Buyer may elect to cancel the order by notifying you and us by email (or otherwise in writing);
5.8.2 we shall not be liable to you for any loss or costs incurred in relation to the order (irrespective of whether the Buyer elects to cancel it); and
5.8.3 you shall pay Global Whisky 50% of the agency fee which is or would be payable by the Buyer in relation to the cask.
5.9 We shall hold funds received from the Buyer in respect of the cask purchase price in a holding account and, subject to paragraph 5.10, we shall remit such funds within 14 days of receiving confirmation from you pursuant to paragraph 5.5.5.
5.10 We reserve the right to not make payment of the purchase price if the Buyer has notified us that they intend to raise a dispute with you relating to the cask or the wider transaction. In such circumstances, we shall be entitled to retain purchase price funds until the dispute is resolved.
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 you engage, or seek to engage, any other user of the Platform for such purposes on any medium except the Platform, you shall be acting in breach of these Terms and Conditions.
7 INTELLECTUAL PROPERTY
7.1 All intellectual property rights in and to the Platform shall remain our property, with the exception of user submitted content containing that user’s intellectual property rights.
7.2 Where you upload any content containing your intellectual property rights to the Platform, you grant us the indefinite right to reproduce, display, modify, manage, distribute and store your intellectual property rights as part of, or for promotion of, the Platform. We are under no obligation to compensate you for any use we make of your intellectual property rights under these Terms and Conditions.
7.3 If you print off, copy or download any part of the Platform in breach of these Terms and Conditions, your right to use the Platform will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
8 LIMITATION OF LIABILITY
8.1 Nothing in these Terms and Conditions limits or excludes our liability for:
8.1.1 death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms of section 2 of the Supply of Goods and Services At 1982 (title and quiet possession).
8.2 Subject to paragraph 8.1, we will not be liable to you, whether in contract, delict, tort, breach of statutory duty, or otherwise in connection with these Terms and Conditions for:
8.2.1 loss of profits;
8.2.2 loss of sale or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss or damage to goodwill; or
8.2.7 any indirect or consequential loss.
8.3 Subject to paragraphs 8.1 and 8.2 our liability to you shall be capped at £1,000. This reflects our position as operator of the Platform and the fact that we do not sell or purchase casks on the Platform.
8.4 Except as expressly stated in these Terms and Conditions, we do not give any representations, warranties or undertakings in relation to the Platform.
8.5 Where permitted by law, we shall have no liability to you in respect of your use of the Platform.
9.1 We do 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.
9.2 Without limiting the generality of paragraph 9.1, you acknowledge and agree that casks listed for sale on the Platform (and any associated goods or services) are provided by our users and not by us. We have no control over, nor do we accept any responsibility or liability for, any issues you may encounter with them.
9.3 We do 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.
9.4 We reserve the right to withdraw or discontinue any product or service at any time at our sole discretion.
9.5 Where you sell, or attempt to sell, a cask on the Platform on behalf of a company, you undertake and warrant to us that you are authorised to do so.
10 THIRD PARTY LINKS AND RESOURCES
Where the Platform contains links to other sites and resources provided by third parties, these links are provided for your information only. We assume no responsibility for the conduct of other users or the content of websites linked to on the Platform. Links to websites should not be interpreted as endorsement by us of those linked websites. We will not be liable for any loss or damage arising from your reliance on the Platform’s users or your use of linked websites.
11 LINKING TO OUR WEBSITE
You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. The Platform must not be framed on any other site, nor may you create a link to any part of the Platform other than the home page. We reserve the right to withdraw linking permission without notice.
12.1 We do not guarantee that our Platform will be secure or free from bugs or viruses.
12.2 You are responsible for configuring your information technology, computer programmes and platform to access the Platform. You should use your own virus protection software.
12.3 You must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to our Platform, the server on which our Platform is stored or any server, computer or database connected to our Platform. You must not attack the Platform via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Platform will cease immediately.
13.1 You undertake that you will not at any time disclose to any person any confidential information about the Platform or our business, affairs or users.
13.2 For the avoidance of doubt, the existence and purpose of the Platform shall not be considered confidential information for the purposes of paragraph 13.1.
14.1 To comply with our legal obligations, we may require you to provide documentation for certain purposes connected with your use of the Platform, including verification of your identity and confirmation that we are not prohibited from dealing with you on account of UK sanctions.
14.2 You shall indemnify us for any loss incurred by us in connection (i) your use of the Platform; (ii) your failure to comply with these Terms and Conditions; and (iii) your failure to comply with the Terms of Sale.
14.3 We may at any time, without notice, set off any liability of you to us against any liability of us to you, 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 us of our rights under this paragraph shall not limit or affect any other rights or remedies available to us under these Terms and Conditions or otherwise
14.4 We may remove the Platform, cease the provision of any of the services made available through it, or terminate your membership of the Platform and the agreement between you and us at any time in our sole discretion for any reason.
14.5 Termination of the agreement between you and us will not affect your or our rights and remedies that have accrued at termination.
14.6 These Terms and Conditions set out the entire agreement between us in relation to their subject matter and replace any previous agreements or understandings.
14.7 These Terms and Conditions do not create or infer any rights that are enforceable by any person who is not party to them.
14.8 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.
14.9 You may not transfer any rights or obligations under these Terms and Conditions to any other person.
14.10 Where one provision of these Terms and Conditions is unenforceable, it shall not affect the validity of the rest of these Terms and Conditions.
14.11 You and we 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 we 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, you shall be individually and separately responsible for complying with the obligations that apply to you as a controller under applicable data protection laws.
14.12 It is your responsibility to satisfy yourself 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 sales made through the Platform.
15 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. We both agree to the exclusive jurisdiction of the Scottish courts.