TERMS & CONDITIONS OF SALE.
Please read the following important terms and conditions before you buy anything and check that they contain everything which you want and nothing to which you are not willing to agree.
These terms
1.1 What these terms cover. These are the terms and conditions on which we supply goods to you.
1.2 Why you should read them. Please read these terms carefully before you submit your order to us. These terms tell you who we are, how we will provide goods to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.
Information about us and how to contact us
2.1 Who we are. We are Ferguson Whisky Ltd, a company registered in Scotland. Our company registration number is 705544 and our registered office is at 10 Newton Terrace, Charing Cross, Glasgow, Scotland G3 7PJ. Our relevant registration numbers are: Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (WOWGR) No: GBOG029729200; Alcohol Wholesaler Registration Scheme (AWRS) URN: XQAW00000117526; EORI (Economic Operator Registration and Identification) No: GBDR029729200; Duty Representative No: GBDR029729200, VAT No. 469109468
2.2 How to contact us. You can contact us by telephoning David Ferguson at 07557 503 850 or by emailing hello@fergusonwhisky.com.
2.3 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your order.
2.4 “Writing” includes emails. When we use the words “writing” or “written” in these terms, this includes emails.
2.5 “WOWGR registration” means registration with HM Revenue & Customs for the purposes of The Warehousekeepers and Owners of Warehoused Goods Regulations 1999.
Our contract with you
3.1 How we will accept your order. Our acceptance of your order will take place when we email you to accept it, at which point a contract will come into existence between you and us (“the contract”) and we will send you our invoice in respect of the purchase price of the goods you have ordered as set out on the order form. Unless otherwise stated payment is due by return.
Your rights to make changes and additional goods and services
4.1 If you wish to make a change to the goods you have ordered, please contact us. We will let you know if the change is possible. If it is possible, we will let you know about any changes to the price of the goods, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change.
4.2 If you wish to order additional goods or services from us, such order shall be subject to us agreeing the cost and terms of supply and our acceptance of your order.Where any such additional services shall be procured by us on your behalf from our suppliers, you will be charged the cost which we are charged plus a 10% administration and processing fee. All such orders shall be subject to these terms and conditions unless we expressly agree otherwise.
Our rights to make changes
We may need to change the goods to reflect changes in relevant laws and regulatory requirements. However, no changes will be actioned without prior agreement by the customer.
Provision of goods
6.1 What will happen if you do not give required information to us. We will require certain due diligence information and documents from you as set out in the separate documents ‘Client Information Questionnaire’ and ‘Anti-Money Laundering Documentation’ so that we can supply the goods to you. If you do not give us this information at the time you place your order, we will not be able to proceed with your order.
6.2 Payment. All payments shall be in British Pounds Sterling. Unless specifically agreed otherwise, we only accept payment by bank transfer to our account the details of which appear on our invoice, and you shall be responsible for any bank charges or fees on payments. All payments are due in full without any deduction by way of set off, counterclaim, discount, abatement or otherwise. We do not accept cash.
6.3 We will do all that we reasonably can to ensure that all of the information you give us when paying for the goods is secure by using an encrypted secure payment mechanism. However, in the absence of negligence on our part, we will not be legally responsible to you for any loss that you may suffer if a third party gains unauthorised access to any information that you give us.
6.4 VAT, duties and further costs. The purchase price is the price of the goods identified on the order form of Linkwood liquid in HHD casks and all other costs referred to in these terms and conditions are exclusive of any applicable VAT, excise or similar duty which shall be payable by return on delivery of our valid invoice in respect of the same. The purchase price does not include any further costs in respect of additional goods or services it is agreed we will provide in accordance with these terms and conditions such as the cost of samples, re-gauging, packaging, delivery, shipping, picking, movement, bottling, design, storage or insurance.
6.5 What happens if you fail to pay any of our invoices. If you fail to make a payment due to us under the contract or any other agreement or arrangement with us by the due date, then, without limiting our remedy, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this term will accrue each day at 3% a year above the Bank of England’s base rate from time to time, but at 3% a year for any period when that base rate is below 0%.
6.6 The details set out on the Order Form are definitive at the time of purchase. The specification of the goods including but not limited to the AYS, OLA, RLA, ABV and location are provided to you based on information supplied to us at the time of sale and we shall have no liability arising from differences in the specifications arising from subsequent re-gauging.
6.7 When you own goods. You own goods once we have received payment in full for them. Risk of loss or damage to the goods also passes at this time, unless the goods are NOT to be held by us on your behalf under our WOWGR registration, when risk will pass on delivery. You are recommended to have your goods insured with effect from the date of payment/delivery. Where the goods are held by us on your behalf under our WOWGR registration, we can provide an insurance quote for the goods to be insured under our own stock insurance on request but we are not obliged to insure your goods.
6.8 Storage costs. As well as the costs of the goods themselves, you will be responsible for storage costs from the date of purchase. Storage costs for a cask are in the region of £80 - £100 per annum but are subject to change. Details of the prevailing costs may be found on our website.Where the goods are held by us on your behalf under our WOWGR registration, we will invoice you yearly in arrears otherwise you will be responsible for paying direct the bonded warehouse which holds your goods.
6.9 Storage of your goods. Unless you have provided us with a copy of your WOWGR registration and we have issued a delivery order to you at your chosen location or you have provided proof of your duty representative (if applicable), your goods will be warehoused at an HMRC bonded warehouse under our WOWGR and designated under your name. We will discuss with you the cost and process of delivery/moving your goods. All movements of goods are made by HMRC accredited bonded transport companies. Any dates quoted for delivery/movement are approximate only, and the time of delivery/movement is not of the essence.
6.10 Actions in respect of goods. Where goods are warehoused under our WOWGR we shall not undertake any actions in respect of your goods, including (but not limited to) moving, sampling, re-gauging or re-racking without your prior permission in writing.
Nature of the goods
7.1 We warrant that on delivery your goods shall:
(a)subject to clause 6.6, conform with their description;
(b)be of satisfactory quality (within the meaning of the Sale of Goods Act 1979.
In this regard please bear in mind clause 7.7); and
(c)be fit for any purpose held out by us.7.2 Subject to clause 7.3, if you give notice in writing to us within a reasonable time of discovery that some or all of the goods do not comply with the warranty set out in clause 7.1, we shall, at our option, replace the defective goods, or refund the price of the defective goods in full.
7.3 We shall not be liable for the goods’ failure to comply with the warranty set out in clause
7.1 in any of the following events:
(a)you make any further use of the goods after giving notice in accordance with clause 7.2;
(b)the defect arises because you have failed to follow our oral or written instructions as to the storage, use and maintenance of the goods or (if there are none) good trade practice regarding the same;
(c)the defect arises as a result of wilful damage, negligence or abnormal storage (unless stored with us under our WOWGR registration).7.4 Except as provided in this clause 7, we shall have no liability to you in respect of the goods’ failure to comply with the warranty set out in clause 7.1.
7.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the contract.
7.6 These terms shall apply to any replacement goods supplied by us.
7.7 It is your responsibility to sample periodically your goods (according to normal industry averages) in order to ensure an acceptable level of maturation and taste according to your expectations. Subject to clause 4, we can arrange for this to be undertaken for you, however, please note that sampling is subjective and we do not accept responsibility should the maturation or taste not meet your expectations.
7.8 It is your responsibility to re-gauge periodically your goods (according to normal industry averages) by measuring the RLA (Re-gauged Litres of Alcohol) and ABV% (Alcohol ByVolume) in order to monitor the loss of alcohol of your goods in both quantity and strength. Subject to clause 4.2, we can arrange for this to be undertaken for you. We will not regauge any cask which is less than 3 years old.
Our right to end the contract
We may end the contract if you do not make any payment to us when it is due, or any payment is declined, and, unless otherwise agreed, you have not made payment within 30 days of the date of an invoice..Limitation of liability
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in the contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective goods under the Consumer Protection Act 1987.9.3 Subject to clause 9.2, our total liability to you shall not exceed the amount paid by you to us in accordance with the contract.
9.4 Subject to clause 9.2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.9.5 This clause 9 shall survive termination of the contract.
Force Majeure
Neither of us shall be in breach of the contract nor liable for delay in performing, or failure toperform, any of our obligations under the contract if such delay or failure results from aForce Majeure Event. In such circumstances the affected party shall be entitled to areasonable extension of the time for performing such obligations. If the period of delay ornon-performance continues for four weeks, the party not affected may terminate thecontract by giving 7 days’ written notice to the affected party. “Force Majeure Event”means an event or sequence of events beyond a party’s reasonable control preventing ordelaying it from performing its obligations under the contract including an act of God, fire,flood, lightning, earthquake or other natural disaster, interruption or failure of supplies ofpower, fuel, water, transport, equipment or telecommunications service, epidemic,pandemic or industrial action, but excluding your inability to pay or circumstances resultingin your inability to pay.
Other important terms
11.1 The contract is our entire agreement. The contract constitutes our entire agreement between you and us and any previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to our supply of the goods is extinguished by it. Each of us agrees that, unless it was made fraudulently, neither of us has any remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the contract or confirmed in writing.11.2 Nobody else has any rights under our contract. The contract is between you and us. No other person. other than your permitted assigns, shall have any rights to enforce any of its terms.
11.3 If a court finds part of this contract illegal, the rest will continue in force. Each of the clause of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
11.4 Even if we delay in enforcing the contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking the contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
11.5 Which laws apply to this contract and where you may bring legal proceedings. The contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with the law of Scotland. Each of us irrevocably agrees that the courts of Scotland will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the contract or its subject matter or formation.
Additional Terms & Conditions in respect of New Make Spirit
12.1 Samples can be requested for an additional charge
12.2 Estimates of storage prices and insurance can be provided
12.3 You agree to indemnify us from all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with your breach of this clause 12, clause 12 sections and subsections.
Cask Movement – There are risks involved in moving casks. These risks include but arenot limited to, the potential to leak, loss of liquid into dry areas of the cask, disturbing theliquid leading to inconsistent maturation, changing the environment the cask is stored inand accidental damage. This loss may vary depending on the condition of the cask, howlong it has been sitting in its current location and the movement process. Moving a cask,where possible should only be done if the casks are being moved to bottle. Stock Insurance, iftaken out by you, does not cover loss of liquid on movement unless the mover accidentallydamages the cask in the movement process. Ferguson Whisky Ltd recommend that casks are not moved unless absolutely necessary and will not be held responsible for any loss suffered due to the customer’s decision to move the cask for any reason.
Regauging and Sampling – There are risks involved in the process of regauging and sampling. The main risk is the loss of liquid however other risks include the need to move thecask in order to carry out the process (see the Risks of Movement) and also disruption of thematuration process as you are allowing the elements into the cask through the process.Ferguson Whisky Ltd recommends that regauging, whether a full regauge or dipped regaugeand sampling should only be carried out when necessary. This may include keeping an eyeon the litres of alcohol and ABV% to ensure the health of the cask or prior to bottling.Ferguson Whisky Ltd will not be held responsible for any loss suffered due to thecustomer’s decision to regauge or sample the cask for any reason.
Maturation Loss of liquid – Maturation of whisky is a natural process that is unique toeach cask due to many uncontrollable variables that make up the maturation process.Whilst the spirit matures, loss of both overall volume (including pure alcohol) and alcoholpercentage (ABV) will occur naturally through evaporation. This is known as the “AngelShare”. This loss is generally expected to be 2% - 5% per year on average, although this canbe higher and is generally around 3% in the first years of maturation. A loss in ABV ofbetween 0.5% and 1% ABV would also be industry standard. Ferguson Whisky Ltd willnot be held responsible for any loss of liquid outside the industry averages unless itcan be demonstrated the loss was due to cask damage
Insurance
16.1 Nearly all casks purchased by you which are held in Government approved bonded warehouses are not insured. The warehouses are not legally obliged to insure casks that are owned by third parties. Risk and Responsibility is the owners. The cask in this Order Pack will not be insured unless specified otherwise. It is your responsibility to insure the cask.
16.2 Some warehouses offer basic insurance (third party, fire and theft) at less than market values. We have been assisted by an insurance broker that specialises in Whisky to obtain insurance through Aviva, the UK’s largest insurance company. The policy provides insurance for casks held in any bonded warehouse all over Scotland and your cask will be insured under our umbrella policy. The casks will be insured at a current replacement valuation provided by Ferguson Whisky Ltd. The casks are insured for fire, theft and damage however there are some obvious exceptions such as under or over maturation, Angel share and loss of ABV. It also includes insurance on transporting the cask between bonded warehouses including vehicle accidents. (excludes exit and transport costs). The full policy document is available by email. Please note there are excesses per claim (not per cask) depending upon the location of your cask and some locations will not be insured for flood. The annual insurance premium is dependent upon the total insurable value of your cask(s) and a quote will be sent to you should you wish to insure your cask.
16.3 The insurance value represents an estimated replacement value of your cask(s) at the time of insurance or insurance renewal. It is an estimated value to ensure you receive a like for like cask(s) in the event of an insurance claim. It DOES NOT represent a market value, sales value or value that we would offer you to buy the cask(s).
16.4 Insurance valuations will only be carried out by the Company at your request. Our advice is that you revalue periodically according to the age the liquid has reached and/or reaching a significant exit point being 8, 10, 12, 15, 16, 18, 21, 25, 28, or 30 years old. If you need revaluations by exception, please contact us. Exceptions to the above will be at the discretion of the Company only.
Estimated Market Valuations
17.1 Estimated Market Valuations will only be carried out by the Company either 2 years after the purchase date or the first significant exit point, whichever is later. The significant exit points are as follows: 8, 10, 12, 15, 16, 18, 21, 25, 28, and 30, years old. For example, if a cask was purchased which was 9 years old then the cask could be valued in 3 years’ time i.e. 2 years (making it 11 years old) and the first significant exit point, being 12 years old whichever is later. Exceptions to the above will be at the discretion of the Company only.