Terms and Conditions of Sale
In these Conditions, the following definitions apply:
BenRiach: The Benriach Distillery Company Limited a limited company incorporated in Scotland under the Companies Acts (Company Number: SC258480) and having their registered Office at Queen Anne Drive, Lochend Industrial Estate, Newbridge, Edinburgh, Scotland EH28 8PL.
BenRiach Materials: all materials, equipment, documents and other property of the Supplier (including pallets, crates, packages, containers and bottles in or upon which Products are delivered in accordance with any Contract).
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in Edinburgh are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8.
Contract: the contract between BenRiach and the Customer for the supply of Products in accordance with these Conditions.
Customer: the person or firm who purchases the Products from BenRiach.
Delivery Location: has the meaning set out in clause 3.1.
Force Majeure Event: has the meaning given to it in clause 13.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Movement Guarantee: such financial security as may be specified by Her Majesty’s Revenue and Customs whether by statutory instrument or otherwise relating to the movement of Scotch Whisky from time to time.
Order: the Customer’s order for the supply of Products, as set out the Customer’s purchase order or the Customer’s written acceptance of BenRiach’s quotation as the case may be.
Products: the products (or any part of them) set out in the Order.
Scotch Whisky: such Whisky as conforms to the definition of Scotch Whisky set out by statute, statutory instrument, order, regulation or anything deriving validity therefrom in force from time to time.
Specification: any specification for the Products that is provided by BenRiach to the Customer or produced by BenRiach as its standard specification of products of the type of the Products.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or reenacted. A reference to a statute or statutory provision
includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase
Products from BenRiach (whose details are set out in the Contract).
2.2 The Order shall only be deemed to be accepted when BenRiach issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of BenRiach which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by BenRiach and any descriptions or illustrations contained in BenRiach’s catalogues, brochures or website are illustrative only of the Products described in them. They shall not form part of the Contract or any other contract between BenRiach and the Customer.
2.4 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.
2.5 Any quotation given by BenRiach shall not constitute an offer, and may be withdrawn at any time.
3. DELIVERY OF PRODUCTS
3.1 The Customer shall collect the Products from BenRiach’s premises notified at the time of acceptance of the Order or such other location as may be advised by BenRiach before delivery (Delivery Location) within three Business Days of BenRiach notifying the Customer that the Products are ready.
3.2 Where the Products are bulk products they shall be made available in ISOtank or such other containers as the parties may agree. The Customer shall test such Products for conformity with Specification in accordance with good industry practice prior to collecting them.
3.3 BenRiach shall be under no obligation to deliver Products:
(a) other than to the Delivery Location; and
(b) other than in the agreed containers or in the agreed packaging or bottles and if nothing is agreed in its standard packaging or bottles as appropriate.
3.4 Delivery of the Products shall be completed on the completion of loading of the Products at the Delivery Location.
3.5 Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. BenRiach shall not be liable for any delay in delivery of the Products.
3.6 If BenRiach fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement products of similar description and quality in the cheapest market available, less the price of the Products. BenRiach shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide BenRiach withadequate delivery instructions for the Products or any relevant
instruction related to the supply of the Products.
3.7 If the Customer fails to accept or take delivery of the Products within 3 Business Days of BenRiach notifying the Customer that the Products are ready, then except where such failure or delay is caused by a Force Majeure Event or by BenRiach’s failure to comply with its obligations under the Contract in respect of the Products:
(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the 3rd Business Day following the day on which BenRiach notified the Customer that the Products were ready; and
(b) BenRiach shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.8 If, by 10 Business Days after BenRiach notified the Customer that the Products were ready for delivery the Customer has not accepted or taken delivery of them, BenRiach may resell or otherwise dispose of part or all of the Products.
3.9 The Customer shall not be entitled to reject the Products if BenRiach delivers up to and including 5 per cent more or less than the quantity of Products ordered but a pro-rata adjustment shall be made to the Order invoice.
3.10 BenRiach may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3.11 Where Products are sold in ISOtank or similar container BenRiach shall be deemed to have complied with any volume requirement of the Contract if the Product offered for collection is within 98.5% of the volume ordered.
3.12 Any movement of Products shall be conducted a Movement Guarantee offered by the Customer unless the parties otherwise agree and the Customer shall provide to BenRiach such documents and evidence as BenRiach shall require to enable it to satisfy itself that it may provide such Products to the Customer without incurring a liability for value added tax and the Customer shall indemnify and keep indemnified BenRiach against any claims costs demands and liabilities which it may incur as a result of the failure of the Customer under this clause.
4. PRICE AND PAYMENT
4.1 The price for Products shall be the price set out in the Order or, if no price is quoted, the price set out in BenRiach’s published price list as at the date of delivery.
4.2 BenRiach reserves the right to revise the price of the Products or to withdraw any discount, by giving notice to the Customer at any time before delivery.
4.3 BenRiach shall invoice the Customer on or at any time after completion of delivery.
4.4 The Customer shall pay each invoice submitted by BenRiach:
(a) within 15 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by BenRiach, and time for payment shall be of the essence of the Contract.
4.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax, if any, chargeable from time to time (VAT) which shall be payable at the same time as payment is due for the supply of the Products.
4.6 Without limiting any other right or remedy of BenRiach, if the Customer fails to make any payment due to BenRiach under the Contract by the due date for payment (Due Date), BenRiach shall have the right to charge interest on the overdue amount at the rate of 5 per cent per annum above the then current Barclays Bank PLC’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
4.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against BenRiach in order to justify withholding payment of any such amount in whole or in part. BenRiach may, without limiting its other rights or remedies, set off any amount 2 owing to it by the Customer against any amount payable by BenRiach to the Customer.
4.8 Where BenRiach consider it appropriate, it may require the Customer, as a condition of supplying any Products under a Contract, to secure payment of any amount due therefor in such manner as BenRiach may specify including, without prejudice to the generality, by way of irrevocable letter of credit.
5. QUALITY OF PRODUCTS
5.1 BenRiach warrants that on delivery the Products shall:
(a) be Scotch Whisky from such distillery or distilleries as BenRiach shall determine from time to time;
(b) comply with all applicable laws and regulations in force in the United Kingdom relating to the sale of Scotch Whisky
(c) conform in all material respects with their description and any applicable Specification;
(d) be of normal appearance, free of any abnormal or objectionable odour or taint.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing within 10 Business days of delivery that some or all of the Products do not comply with the warranty set out in clause 5.1;
(b) BenRiach is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by BenRiach) returns such Products to BenRiach’s place of business at BenRiach’s cost, BenRiach shall, at its option replace the defective Products, or refund the price of the defective Products in full.
5.3 BenRiach shall not be liable for the Products’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Products after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow BenRiach’s oral or written instructions as to the storage or use of the Products or (if there are none) good trade practice;
(c) the defect arises as a result of BenRiach following any drawing, design, recipe or specification supplied by the Customer or for any defect in any information supplied by the Customer;
(d) the Customer alters, bottles or repacks such Products without the written consent of BenRiach; or
(e) the defect arises as a result of wilful damage or negligence.
5.4 Except as provided in this clause 5, BenRiach shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any replacement Products supplied by BenRiach under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer on completion of delivery.
6.2 Title to the Products shall not pass to the Customer until BenRiach has received payment in full (in cash or cleared funds) for the Products but the Customer may resell or use the Products in the ordinary course of its business.
6.3 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(l), or BenRiach reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy BenRiach may have, BenRiach may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 7 shall survive termination of the Contract.
8. LIMITATION OF LIABILITY:
8.1 Nothing in these Conditions shall limit or exclude BenRiach’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; or
(b) defective products under the Consumer Protection Act 1987.
8.2 Subject to clause 8.1:
(a) BenRiach shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by BenRiach, its employees, agents or subcontractors); and
(b) BenRiach’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by BenRiach, its employees, agents or subcontractors shall not exceed the price of the Products specified in the Contract plus the relevant delivery costs incurred by the Customer under the Contract.
8.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 21 days after receipt of notice in writing of the breach or in the case of non payment of the price in terms of clause;
(b) 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) 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 its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) 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 (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) 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 clause 9.1(b) to clause 9.1(l) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.2 Without limiting its other rights or remedies, BenRiach may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, BenRiach shall have the right to suspend all further deliveries of Products under the Contract or any other contract between the Customer and BenRiach if:
(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(l), or BenRiach reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION AND OTHER REMEDIES
10.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to BenRiach all of BenRiach’s outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has yet been submitted, BenRiach shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all BenRiach Materials which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them.
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Products shall be owned by BenRiach.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Products, the Customer’s use of any such Intellectual Property Rights is conditional on BenRiach obtaining a written licence from the relevant licensor on such terms as will entitle BenRiach to license such rights to the Customer.
11.3 The Buyer shall not alter, obscure, remove, conceal or otherwise interfere with any markings, or other identification, of source or origin placed by BenRiach on the goods, or on their labelling or packaging.
11.4 All BenRiach Materials are the exclusive property of BenRiach.
12. BENRIACH MATERIALS
The Customer shall keep and maintain all Supplier Materials in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation at the cost of the Customer. The Customer shall pay BenRiach for the cost of replacement of BenRiach Materials which have not been returned to BenRiach within 3 Business Days of such time as BenRiach shall have notified the Customer requesting such return or which have been returned and are not in the opinion of BenRiach in a fit state or condition for re-use by BenRiach.
13. FORCE MAJEURE
13.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of BenRiach including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2 BenRiach shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.3 If the Force Majeure Event prevents BenRiach from providing any of the Products for more than 4 weeks, BenRiach shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
14.1 Dispute Resolution:
(a) If any dispute arises out of the Contract the parties will attempt to settle it by negotiation within 90 days of the dispute arising, which failing the parties shall attempt to settle it by mediation in accordance with the Centre for Dispute Resolution Model Mediation procedure.
(b) Subject to clause 14.1(c) below, no party may commence any court proceedings in relation to any dispute arising from this agreement until they have attempted to settle it by mediation and that mediation has terminated.
(c) Nothing in this clause 14.1 shall prevent the parties from seeking immediate preventative relief, such as an interdict or injunction, at any time.
14.2 Assignment and subcontracting:
(a) BenRiach may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of BenRiach, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails
and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
14.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.8 Variation: BenRiach shall be entitled to delete, alter or add to these terms at any time and such revised terms shall be posted to the last known address of the Customer by ordinary pre-paid post, published on BenRiach’s website or otherwise are made available for inspection at the registered office of BenRiach during normal office hours following upon such variation but no such deletion, alteration or addition shall have effect in relation to a Contract already concluded with the Customer prior to the date of its introduction unless the parties otherwise agree in writing.
14.9 Governing law and jurisdiction: This 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, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland