Definitions and Interpretation

1.1

“Brand” means all intellectual property rights subsisting in or pertaining to any product from or associated with the Distillery and any name, logos, packaging, design, or any aspect of the put-up, look and feel of the Product in whatever form We may apply from time to time and/or any rights in or to the 1837® trademark.

“Cask” means a cask used for the maturation of Scotch Whisky made of oak and not having a capacity exceeding 700 litres, more particularly described in clause 3.1;

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

“Contract” means the contract, comprising the Letter, the Order and these Terms, entered into between You and Us for the purchase and sale of the Product;

“Distillery” means The Borders Distillery, Hawick TD9 7AQ;

“Letter” means the Letter to which these Terms are appended, or in which these Terms are referred to such as in an e-mail from Us, confirming our acceptance of Your Order;

“Maturation Period” means the period of time established pursuant to clause 3.3 of these Terms;

“Order” means the order for the Product, in the form attached to the Letter or as available from www.thebordersdistillery.com ;

“Price” means the price of and payment terms for the Product as set out in the Letter and associated Order or at www.thebordersdistillery.com , and as further detailed in clause 6.3; 

“Product” means the new make spirit distilled at the Distillery which (i) no later than the completed Maturation Period in Cask is Scotch Whisky, and (ii) is identified in the Letter. For the avoidance of doubt this includes where applicable the Cask in which the Product is stored;

“Terms” means these terms and conditions;

“Writing” means post facsimile transmission, e-mail and any comparable means of communication and “Written” shall be construed accordingly;

“Us”, “Our” or “We” means The Borders Distillery Company Limited incorporated in Scotland with Company number SC445020 and with its registered office at The Borders Distillery, Hawick, TD9 7AQ, The Scottish Borders, and its successors and assignees and “Our” shall be interpreted accordingly;

“Year” means a twelve month period from the Filling Date initially and subsequent periods of twelve months commencing on the anniversary of the Filling Date;

 “You and “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:

• The word “including” means “including but not only”.
• A reference to “clause” is relevant to the clauses of these Terms, unless otherwise stated.
• The headings are for convenience only and shall not affect the interpretation of these Terms.
• References to the singular shall include the plural and vice versa.

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 and 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.

Terms of Sale

2.1 

We agree to sell and You agree to purchase the Product for the Price on the Terms set out herein.

2.2

These Terms apply to contracts for the supply of the Product by Us to the exclusion of any other terms and conditions unless and except to the extent that these Terms have been superseded by any terms and conditions which We have notified to You or these Terms have been cancelled, waived, or varied by Us in Writing.

Our Responsibilities

3.1

On receipt of Your payment of the Price in full, We will:

• Fill a Cask of the type selected on the date specified by You (“Filling Date”) with new make spirit produced entirely at the Distillery.
• Produce a certificate of ownership with Your name, specifying Your selected Cask, the Filling Date and a unique Cask reference which will on the first anniversary of the filling date permit access to Our 1837 Private Cask App.

Where Your selected Cask type cannot be supplied, We will contact You in advance of the Filling Date to agree with You an alternative Cask type. 

While We will endeavour to fill Your Cask on Your nominated Filling Date, We reserve the right to fill Your Cask on an alternative date as close as possible to Your nominated Filling Date should the circumstances require it.

3.2

We will fill Your Cask to the capacity of that Cask at 63.5% alcohol by volume (“ABV”) or 127% alcohol by proof (as defined in the United States of America). 

3.3

We will store Your Cask in warehouses under Our control for the in-cask maturation of the Product for a period being not less than three (3) Years from the Filling Date of the Product into Cask and thereafter up until the tenth anniversary of the Filling Date, or longer as provided herein (“Maturation Period”).

We shall discuss with You the suitable age at which to bottle the Product (such bottling not to be earlier than the Scotch Whisky Regulations 2009 required minimum period of three years from the Filling Date).  

Our expectation is that the Product will be bottled after a period of not less than ten (10) Years from the Filling Date.  

Notwithstanding the foregoing the Product may not be bottled until after Our own release of “The Borders Distillery Single Malt Whisky” in whatever form and name or trademark that may take.

Should You decide to continue the maturation of the Product in Cask beyond the period of ten (10) Years the Cask will remain in a warehouse under Our control but We will charge You for warehouse rentals, handling, insurance, inspection, sampling and other maturation services which may be provided by Us at the prevailing commercial rates.

3.4

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

3.5

You acknowledge and agree that Your Cask must remain in warehouses under Our control for its entire Maturation Period, irrespective of duration and whether or not beyond ten (10) Years. The Product shall not be transferred to any other Cask or third- party warehouse.

The Product will be bottled by Us or under Our control and supervision following discussion and agreement with You on the labels and packaging (including all content, logos, and nomenclature) to be used for the bottling. 

We reserve all rights in and to the Brand and nothing in the Contract shall be construed as granting or conferring on You any rights by any means (whether express, implied or otherwise) in connection with the Brand. We will have final say and sole discretion on any matter concerning labels and packaging of the Product.

Bottling by a third party will not be permitted without Our prior consent in writing. You may not change the labels or packaging of the Product after bottling.

3.6

Subject to the provision of clause 3.5 and subject always to the Scotch Whisky Regulations (2009) We will, upon Your request, bottle the Product 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 writing 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 the parties to the Contract) 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. 

3.7

After bottling of the Product, You will be liable immediately for UK excise duty and UK VAT payable in respect of the Product at the prevailing rates unless You can arrange for shipping to an approved bonded warehouse within or without the UK. 

You must settle all excise duty and VAT amounts and arrange for shipment of Your cask within one month of completion of the 10-year included storage, after which storage charges payable by You may be incurred. The Product will not be released from storage until all excise duty, VAT amounts and storage charges due and owing are paid in full.

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 for the First year that the Cask is in the warehouses under Our control, that will permit a free tour of the Distillery. These vouchers are fully transferrable and subject to our normal terms and conditions.

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 Product from Your Cask, We may at our sole discretion and subject to prevailing HMRC regulations and practice, following a request in writing from You, facilitate the provision of the sample subject to payment by You of delivery charges, postage or courier charges and an administrative charge.

4.3

For any additional requirements of cask sourcing or re-racking, You will contact Us directly to enquire. These additional services are subject to availability at an additional cost determined by Us at the time of enquiry. 

4.4

You acknowledge that as a natural part of ageing new make spirit to become Scotch Whisky there will be a loss of both alcohol and volume in the Product in Your Cask during the Maturation Period due to evaporation, leakage or otherwise; whilst this may fluctuate We anticipate that this may amount to a loss of up to 2% per annum. We shall be under no obligation to make good any loss of the Product in Your Cask from the evaporation, leakage or otherwise.

4.5

You hereby 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 You are one of the following:

• A private customer who is purchasing the Product for private and non-commercial use.
• A UK based Revenue Trader, are registered as an Owner of Warehoused Goods in the UK, You have obtained ‘WOWGR’ number from HMRC and will exhibit it to Us.
• An overseas Revenue Trader, and either have or will appoint a UK Duty Representative (HMRC, notice 206) or have registered with the Spirits Drinks Verification Scheme. 

4.6

You acknowledge and agree that it is Your responsibility to familiarise Yourself with and thereafter comply with the requirements of HMRC as regards the purchase of the Product from us.

4.7

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 and do not guarantee any minimum level of Cask filling.

4.8

You must notify Us immediately of any change to Your address or contact details. In the event that We are unable to contact You on expiry of ten (10) Years from the Filling Date We reserve the right to sell the Product and to hold the proceeds on Your behalf after deduction of sale costs and any other costs which We may have incurred from warehousing the Cask for a period longer than ten (10) Years.

Appropriate forms and links for this purpose will be available from Our website (www.thebordersdistillery.com). In the event of Your death or bankruptcy We will be entitled to treat Your Executor or Agent in Bankruptcy (as the case may be) as acting in Your stead in seeking Our prior consent in writing.

4.9

If You wish to sell, transfer, or assign ownership of Your cask (in whole or in part) You must seek Our prior consent in writing and the new owner must agree in writing in advance to abide by these Terms. We may at our sole discretion refuse to give such consent. In the event of Your Cask becoming available for sale We have right of first refusal to purchase the Cask from You at fair market value.

Title and risk

5.1

You acknowledge and agree that You will only obtain rights to the Product (and to the Cask itself) until all amounts owing to Us in respect of the Product whether arising before or after bottling are paid to us in full. 

5.2

Risk in the Product shall pass to You at the point of collection by You or Your nominated representative or carrier from Us after bottling subject to Clause 4.3. In the event of complete or substantial damage loss or damage to the Cask during the Maturation Period, We will offer You a replacement of the closest available filled cask defined by type and filling date.

Order, Price and Payment

6.1

No Order submitted by You shall be held to be accepted by Us unless and until it is confirmed by Us in Writing.

On receipt of Your Order specifying the Cask type and the Filling Date we shall issue You with the first of two invoices. The first invoice will be issued setting out the price of the first instalment no less than five working days prior to the specified Filling Date We shall issue You with the second invoice setting out the Price of the second instalment.

6.2

You agree that You shall pay the amounts due and owing under each invoice within the time set out in the covering letter. You acknowledge that all payments due under the First instalment and the Second instalment will be made to us in full prior to You taking the Cask off site. If either of the invoices is not paid in full within the period required We shall be entitled to treat Your Order as cancelled and where applicable retain the proceeds of the First instalment. 

No Order which We have accepted for which payment in full has been made may be cancelled by You except with Our Written agreement and on terms that You shall indemnify Us in full against all losses (including loss of profit) costs, damages, charges, and expenses incurred by Us as a result of such cancellation.

6.3

The Price includes all storage and insurance charges for the first ten (10) Years of the Maturation Period; the storage period starts on the Filling Date of Your Cask. The Price excludes the costs of bottling, delivery, insurance, overheads, packing, loading, and carriage of the cask and all taxes, VAT duties and charges during the Maturation Period of the Product which are Your responsibility.

For the avoidance of doubt the Price excludes the cost of storage and insurance of the Product after the expiry of ten (10) Years from the Filling Date and the Price will not be reduced in the event that the Product is bottled before the expiry of ten (10) Years from the Filling Date.

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 to You or any third party for:

• Loss of profits
• Loss of business
• Depletion of goodwill or similar losses
• Loss of anticipated savings
• Loss of use
• Loss or corruption of data or information
• Any form of indirect, special, or consequential loss whatsoever or howsoever caused
  

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 from Us to the last known address which We 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

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. 

8.4

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.

8.5

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 the parties in relation thereto and sets forth the full extent of Our obligations and liabilities in respect of the Product. We reserve the right to alter or add to these Terms at any time provided that We give You notice in writing of the alteration or addition.

8.6

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 be implied in or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.

8.7

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.

1837® – Governing Law and Jurisdiction

9.

The Contract (and any contractual disputes or claims) is governed by the law of Scotland and the parties submit to the exclusive jurisdiction of the Scottish courts.