Terms & Conditions - 1837®

1837 – Definitions and Interpretation

1.1

“Brand” means all intellectual property rights subsisting in or pertaining to any product and any name, logos, packaging, design or any aspect of the put-up, look and feel of the 1837 Product in whatever form we may apply from time to time and/or any rights in or to the “1837 Private Cask Invitation”;

“Cask” has the meaning set out in clause 3, paragraph 1;

“Cask Type” means the cask type set out in the invitation and chosen by the purchaser;

“Contract” means the contract, comprising the Letter and these terms, entered into between you and us for the supply of Product;

“Letter” means the letter to which these terms are appended, or in which these terms are referred to such as e-mail from 1837@thethreestillscompany.com, that confirms our acceptance of your Order;

“Order” means the order for Product, details of which are contained in the Letter;

“Price” means the price of the Product as set out in the letter and excluding costs of delivery, insurance, overheads, packing, loading, carriage, taxes and duties;

“Product” means the whisky products identified in the letter which for the avoidance of doubt includes the actual liquid stocks and the cask in which the Product is stored;

“Terms” means these terms;

“ us “or “we” means the Three Stills Company Limited, a Company incorporated in Scotland with Company number SC445020 and registered office at The Borders Distillery, Commercial Road, Hawick, TD9 7AQ, The Scottish Borders, and “our” shall be interpreted accordingly.

“your” means the buyer or person to whom the letter is addressed and “your” shall be interpreted accordingly.

1.2

Unless the context requires a different interpretation, the following rules apply to interpret these terms:

a) The word “including” means “including but not only”
b) A reference to “clause” is relevant to the clauses of these Terms, unless otherwise stated
c) The heading in these terms do not affect the meaning of the Clauses.

1.3

In the event of any conflict or inconsistency between them, the terms of these Terms will take precedence over any other terms purported to apply to the Contract an shall take precedence over any terms set out in any ordering of other documents purported by you to apply.

1.4

Any references to any Scottish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any legal concept or thing shall in respect of any jurisdiction other than Scotland be deemed to include what most nearly approximates in that jurisdiction to the Scottish legal term.

1837 – Terms of Sale

2.1

We agree to sell and you agree to buy the Product for the price on the terms set out herein.

2.2

We do not enter contracts for the sale or supply of Product on terms other than these Terms.

1837 – Our Responsibilities

3.1

On receipt of your payment in full, we will fill a cask of the type selected on the date specified by you with liquid produced entirely at the Borders Distillery®. A certificate of ownership will be produced with your name, your selected cask , the date specified and a unique cask reference which also permits access to the 1837 App (your “Cask”). Where your selected cask type cannot be supplied, we will contact in advance of the filling date to agree with you an alternative cask type.

3.2

We will fill your cask to capacity at 63.5% alcohol by volume or 127% alcohol by proof (as defined in the United States of America).

3.3

We will retain your cask in warehouses under our control for the in-cask maturation of the product.

3.4

We shall insure the Product on the same terms and on the same basis as other like products and stock.

3.5

You acknowledge and agree that you will only obtain rights to the cask itself after the in-cask maturation period has ended. Until that point all right, title and risk in the cask itself shall remain ours. In the event of complete or substantial damage loss or damage to the cask, we will offer you a replacement of the nearest available cask defined by type and filling date.

3.6

You acknowledge that your cask must remain in warehouses under our control for its entire maturation and that its contents must be bottled in agreement by us. The cask may not be bottled until after our own release of “Borders Distillery Single Malt Whisky”

3.7

Subject to the provision of clause 3.6 and subject to Scotch Whisky Regulations (2009) we will upon your instruction use the contents of the cask to fill bottles in and for this purpose we will use proprietary dry goods and materials that are available at the time of bottling. We will endeavour to accommodate any reasonable and legally compliant requests which you may make in respect of the customisation of the bottle, packaging, secondary packaging and labelling. In the absence of any prior written agreement entered into with you which provides otherwise, we will (as between us) own any intellectual property rights in any such customisation and the production thereof. You acknowledge and agree that where we do so agree to accommodate requests for such customisation that we will be entitled to charge you for the same following prior written agreement.

3.8

After bottling you will be liable for UK excise duty and UK VAT at the prevailing rates unless you can arrange for shipping to an approved bonded warehouse within or without the UK. You must settle all duty and VAT amounts and arrange for shipment of your bottles within one month of completion of the bottling operation.

1837 – Your rights and responsibilities

4.1

Once your cask has been paid for, and it has been filled, you will be entitled to six vouchers (available via the 1837 App) for every year the cask is in our warehouses that will permit a free tour of the Borders Distillery® in Hawick. These vouchers are transferrable and subject to the terms and conditions as displayed in the 1837 App.

4.2

Your cask will be monitored regularly and you will receive a yearly update via our 1837 App of its evolution using a proprietary taste ‘spidergram’. In the event you wish to obtain a sample of your cask, we may at our discretion and subject to prevailing HMRC regulations , following a request from you permit this and will do so subject to payment of delivery charges, postage or courier charges and a reasonable administrative charge.

4.3

You acknowledge that as a natural part of ageing whisky there will be a loss of both alcohol and volume whilst the Product matures in your cask and whilst this may fluctuate we anticipate that this may amount to a loss of up to 2% per annum.

4.4

Your warrant and represent to us that you have complied, are complying and will comply with prevailing HMRC regulations applicable to all contracts of this nature, including that:

a) You are a private customer who is purchasing the product for private and non-commercial use

b) You are a UK based Revenue Trader, are registered as an Owner of Warehoused Goods in the UK and can present your ‘WOWGR’ number.

c) You are an overseas Revenue Trader and either have or will appoint a UK Duty Representative (HMRC, notice 206)

4.5

You acknowledge and agree that it is your responsibility to familiarise yourself with and thereafter comply with the requirements of HMRC as regards to the purchase of Product from us. We will include a link to the relevant HMRC guidance on our 1837 App.

4.6

You acknowledge and agree that the ‘approximate filling levels’ contained in the letter are a guideline only, that each cask will have a slightly different capacity and that we cannot guarantee any minimum level of fillings.

4.7

Nothing in the Contract grants you rights in or a license to the Brand or any of our intellectual property rights. You must inform us of any change of name or address and if you wish to transfer ownership of your cask you must seek our prior agreement and the new owner must agree to abide by these terms. Appropriate forms and links will be available on the 1837 App.

1837 – Title and risk

5.1

Risk in the product shall pass to you at the point of collection by you or your nominated representative or carrier from us.

5.2

Ownership in the Product shall not pass to you until all amounts due are paid in full.

1837 – Price and Payment

6.1

On receipt of your order specifying cask type and filling date we shall issue you with the first of two invoices. The invoice will be issued with a covering letter for the Price (Part One) plus any VAT payable thereon.

No less than five working days prior to the specified filling date we shall issue you with the second of two invoices. This invoice will be issued with a confirmation letter for the Price (Part Two) plus any VAT payable thereon.

6.2

You agree that you shall pay amounts owing under the invoice within in the Period set out in the letter and you acknowledge that all payments should be received prior to filling the cask. If the invoices are not paid within the period required we shall be entitled to treat your order as rescinded and our confirmation as set out in the Letter as cancelled and we shall have no further responsibility to you under the contract.

You agree that non-payment of the Invoice (Part Two) will render the order as rescinded and you acknowledge that we will return the payment made against the invoice (Part One) less twenty percent of the total price (Part One and Part Two).

6.3

The Price includes all insurance and storage charges for the first ten years of storage ( for the avoidance of doubt the storage period starts on the filling date of your cask) and you will be notified of the prevailing rates should you wish us to hold your cask beyond this period.

1837 – Liability

7.1

Nothing in the contract shall exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or any other liability which may not be excluded by applicable law.

7.2

Subject to Clause 7.1 as save as otherwise provided in these Terms, we shall not be liable for:

a) Loss of profits
b) Loss of business
c) Depletion of goodwill or similar losses
d) Loss of anticipated savings
e) Loss of use
f) Loss or corruption of data or information
g) Any form of indirect, special or consequential loss whatsoever or howsoever caused.

1837 – Miscellaneous

8.1

Any notice to be made under or regarding the Contract shall be made in English in writing and by letter to the address of the relevant party as set out in the Letter or in the case of letters to you to the last known address which have on record for you.

8.2

We shall not be liable for any delay in performing our obligations under the Contract where such delay is caused by circumstances beyond our reasonable control.

8.3

You may not assign , sub-contract or otherwise transfer any rights or obligations under the Contract without our prior consent.

8.4

The Contract does not create a partnership or joint venture between the parties, nor authorise either party to act as an agent for the other.

8.5

No amendment of the Contract will be effective unless it is signed in writing by us

8.6

If any provision (or part thereof) of these Terms should be found to be invalid, unlawful, or unenforceable by a court having proper authority, or if the law changes so that it becomes invalid, unlawful, or unenforceable to any extent, then this Clause will apply the provision (or part affected) will be treated as having been deleted from the remaining Terms which will remain in full force and effect.

8.7

We will not be treated as having:

a) waived a right or remedy arising under the Contract or other in law; and/or
b) elected to abandon a right or remedy arising under the Contract or otherwise in law; and/or
c) where applicable, thereby affirmed the contract; except if and to the extent that it has been expressly documented such waiver or election (and any resultant affirmation) in writing signed and delivered by you.

8.8

The Contract constitutes the entire agreement between you and us in relation to its subject matter and supersedes any prior arrangement, understanding or agreement between them in relation thereto and sets forth the full extent of our obligations and liabilities in respect of the Product.

8.9

To the fullest extent permitted by applicable law, we hereby exclude any conditions, warranties or other terms, express or implied, including as to quality, fitness for particular purpose or any other kind whatsoever, as being binding on us except as specifically stated in these Terms and a condition, warranty or other term concerning the Product which might otherwise by implied into or incorporated within the Agreement, whether by statute, common law or otherwise, is expressly excluded.

8.10

You acknowledge that in entering into the Contract, you have not relied on any statement, representation, warranty, undertaking or other assurance given or made by any person (whether a party to the Contract or not) other than as expressly set out or referred to in the Contract. You hereby waive all rights and remedies howsoever arising, which, but for this clause, might otherwise be available to it in respect of representation, warranty, undertaking or other assurance.

8.11

Nothing in these Terms is intended to or will be construed as limiting or excluding any liability for fraud or fraudulent misrepresentation.

1837 – Governing Law and Jurisdiction

9

The Contract (and any contractual disputes or claims) is governed by the laws of Scotland and the parties agree that the Scottish courts will have exclusive authority to settle any dispute arising out of or in connection with the Contract (and any non-contractual disputes or claims)