1.1 These Terms of Sale govern the purchase and sale of Casks of whisky on our website www.therarewhiskyshop.com (the “Platform”) and set out the entire relationship between the parties buying (the “Buyer”) and selling (the “Seller”) the Casks. You agree to comply with these Terms of Sale at all times when buying and/or selling a Cask on the Platform (a “Transaction”). Each Transaction shall form and constitute a distinct contract between the Buyer and Seller.
1.2 These Terms of Sale form a legally binding contract between the Buyer and the Seller to each Transaction.
1.3 For the avoidance of doubt, Global Whisky Limited is not a party to this contract. The Buyer Terms and Conditions govern the relationship between Global Whisky Limited and the Buyer (available here). The Seller Terms and Conditions govern the relationship between Global Whisky Limited and the Seller (available here). Together, the Buyer Terms and Conditions and the Seller Terms and Conditions are the “Registration Terms”.
1.4 In these Terms of Sale, “Cask” shall mean a cask of whisky that is subject to a Transaction and its contents.
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. Each party is deemed to have satisfied themselves as to the duties or taxes which arise in connection with any Transaction.
2 SUPPLY OF CASKS
2.1 The Seller shall supply, and the Buyer shall purchase, such Casks as provided for in orders made by the Buyer and accepted by the Seller, in accordance with these Terms of Sale.
2.2 The Registration Terms set out the arrangements governing:
2.2.1 the making of orders by the Buyer;
2.2.2 the acceptance of orders by the Seller; and
2.2.3 the calculation and transfer of payment funds.
2.3 A contract shall be formed between the Buyer and Seller, on the basis of these Terms of Sale, at the time the Seller confirms to Global Whisky that, in respect of a Buyer’s order and in accordance with paragraph 5.3 of the Seller Terms and Conditions:
2.3.1 the Seller owns the Cask and is able to grant its sale;
2.3.2 the Cask is still available for sale;
2.3.3 the listing on the Platform accurately describes the Cask;
2.3.4 the Seller is prepared to sell the Casks on the basis of the Terms of Sale; and
2.3.5 the order is accepted by the Seller.
3 CASK QUALITY
3.1 The Seller shall ensure that Casks supplied to the Buyer under these Terms of Sale shall:
3.1.1 conform to the Seller’s specification of the Cask on the Platform;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller or made known to the Buyer by the Supplier; and
3.1.3 comply with all applicable statutory and regulatory requirements.
3.2 The Seller shall indemnify the Buyer against all liabilities, costs, expenses, damages and losses suffered or incurred by the Buyer arising out of or in connection with any breach by the Seller of its obligations under paragraph 3.1 of these Terms of Sale.
3.3 The Seller and the Buyer shall each obtain and maintain in force all licences, permissions, authorisations, consents and permits needed to supply and purchase the Casks in accordance with the terms of these Terms of Sale.
3.4 The Seller shall respond to reasonable queries from the Buyer relating to the Cask promptly and in reasonable detail.
3.5 If, as a result of information provided by the Seller in accordance with paragraph 3.4 or otherwise, the Buyer reasonably considers that Cask is not or is not likely to be as warranted under paragraph 3.1, the Buyer shall inform the Seller and:
3.5.1 if the issue is remediable, the Seller shall immediately take such action as is necessary to ensure that the Cask is or will be as warranted under paragraph 3.1; or
3.5.2 if the issue is not remediable, the Buyer shall have the right to terminate the Transaction and recover any losses reasonably sustained as a result of the terminated Transaction from the Seller.
3.6 Any dispute concerning whether an issue arising under paragraph 3.5 is remediable shall be managed in accordance with paragraph 12.
4 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 from the Seller, in accordance with paragraph 5.8 of the Seller Terms and Conditions. The Seller must notify the Buyer immediately following such acknowledgement.
5.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers of the other party or of Global Whisky Limited, 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 5.2.
5.2 Each party may disclose the other party’s Confidential Information:
5.2.1 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 of Sale; and
5.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
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 or the Seller engages, or seeks to engage, any other user of the Platform for such purposes on any medium except the Platform, it shall be acting in breach of these Terms of Sale.
The Seller shall maintain in force insurance policies with reputable insurance companies sufficient to cover its liabilities in respect of each Transaction under these Terms of Sale.
8 LIMITATION OF LIABILITY
8.1 This paragraph sets out the entire financial liability of the Buyer and Seller (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 of Sale and any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Sale.
8.2 Nothing in these Terms of Sale shall limit or exclude the liability of either party for:
8.2.1 death or personal injury resulting from negligence;
8.2.2 fraud or fraudulent misrepresentation;
8.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
8.2.4 the indemnity contained in paragraph 3.2; or
8.2.5 the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
8.3 Without prejudice to paragraph 8.2, neither party shall be liable to the other, whether in contract, delict, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of profit; loss of goodwill; loss of business; loss of business opportunity; loss of anticipated saving; loss or corruption of data or information; or special, indirect or consequential damage or loss suffered by the other party that arises under or in connection with these Terms of Sale.
8.4 Without prejudice to paragraph 8.2 or paragraph 8.3, the total liability of each of the Buyer and Seller arising under or in connection with this 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:
8.4.1 125% of the purchase price for the Cask agreed between the Buyer and Seller (excluding the agency fee); or
8.4.2 if no purchase price has been agreed between the Buyer and Seller, 125% of the purchase price stated on the listing of the Cask on the Platform (excluding the agency fee).
9 ASSIGNATION AND OTHER DEALINGS
9.1 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 of Sale without the prior written consent of the other party and Global Whisky Limited.
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:
10.1 the other party fails to pay any undisputed amount due under these Terms of Sale (or the Registration Terms) on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
10.2 the other party commits a material breach of any other term of these Terms of Sale which breach is irremediable or and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
10.3 the other party repeatedly breaches any of the terms of these Terms of Sale 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 of Sale;
10.4 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;
10.5 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;
10.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the other party;
10.7 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;
10.8 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;
10.9 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;
10.10 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 10.1 to paragraph 10.9 (inclusive);
10.11 the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
10.12 any force majeure event prevents the other party from performing its obligations under these Terms of Sale for any continuous period of three months.
11 COMPLIANCE WITH REGISTRATION TERMS
11.1 Each party agrees to comply with the terms of the Registration Terms which it has entered into with Global Whisky Limited.
11.2 For the avoidance of doubt, either party may bring a claim under these Terms of Sale for any losses sustained by that party as a result of the other party’s failure to comply with the Registration Terms it has entered into.
12.1 If a dispute arises out of or in connection with these Terms of Sale, a Transaction or the performance, validity or enforceability of it (a “Dispute”) then the parties shall follow the procedure set out in this paragraph 12.1:
12.1.1 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 the Seller shall attempt in good faith to resolve the Dispute;
12.1.2 if the representatives are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties shall be free to commence court proceedings in relation to the Dispute.
12.2 If Global Whisky Limited holds payment funds while any Dispute is ongoing, it may, in its sole discretion, elect to return the funds to the Buyer, pass the funds to the Seller or retain the funds until the Dispute is resolved.
13.1 Termination of a Transaction will not affect rights and remedies that have accrued at termination.
13.2 These Terms of Sale set out the entire agreement between the Buyer and the Seller in respect of the Cask and replace any previous agreements or understandings.
13.3 These Terms of Sale do not create or infer any rights that are enforceable by any person who is not party to them, with the exception of Global Whisky Limited who shall be able to enforce these Terms of Sale on behalf of either party.
13.4 Any notice or communication given under or in connection with these Terms of Sale must be in writing. For the avoidance of doubt, communication by email is valid.
13.5 Neither the Buyer nor the Seller may not transfer any rights or obligations under these Terms of Sale to any other person without the consent of the other party and Global Whisky Limited.
13.6 Where one provision of these Terms of Sale is unenforceable, it shall not affect the validity of the rest of these Terms of Sale.
13.7 The Buyer and the Seller shall process personal data received under and/or in connection with these Terms of Sale each as a separate and independent controller. In no event shall the parties process personal data under and/or in connection with these Terms of Sale 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.
13.8 Where either the Buyer or the Seller 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.
14 APPLICABLE LAW
These Terms of Sale, their subject matter and their formation (and any non-contractual disputes or claims) are governed by the law of Scotland. The Seller and Buyer both agree to the exclusive jurisdiction of the Scottish courts.