1.1

“Brand” means all intellectual property rights subsisting in or pertaining to any product from or associated with the Borders Distillery or Spirits Network including 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 American Cask Scheme

“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, Scottish Borders, Scotland TD9 7AQ;

“Delivery Order” means a letter from the Borders Distillery Company Limited confirming title, cask registration number, associated barcodes and filling information including litres filled and the proof strength of filling.

“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 xxx@spiritsnetwork, that confirms 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 found a xxx@spiritsnetwork. 

“Price” means the price of and payment terms for the Product as set out in the Letter and associated Order or at xxx@spiritsnetwork, 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, a Company incorporated in Scotland with Company number SC511845 and with its registered office at The Borders Distillery, Hawick, Scottish Borders, Scotland, TD9 7AQ, 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:

1. The word “including” means “including but not only”.
2. A reference to “clause” is relevant to the clauses of these Terms, unless otherwise stated.
3. The headings are for convenience only and shall not affect the interpretation of these Terms.
4. 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

1. Fill an American Cask on the date specified by You (“Filling Date”) with new make spirit produced entirely at the Distillery. 
2. produce a certificate of ownership with Your name, specifying the Filling Date and a unique Cask reference which also permits access to Our American Cask app. 
3. produce a Delivery Order to confirm title.

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 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 US federal, state and local taxes payable in respect of the Product at the prevailing rates, We will arrange for shipping to an approved bonded warehouse in the USA You must settle all relevant taxes for shipment of Your Bottled Product within one month of delivery by Us to the bonded warehouse after which storage charges payable by You may be incurred. The Product will not be released from storage until all taxes and applicable storage charges due and owing are paid in full.

3.8

Each American Cask purchased entitles the owner to a Non-Fungible Token which in turn entitles the owner to a bottle from the first bottling of Borders Distillery Single Malt Scotch Whisky, delivered all taxes paid to the owner’s home address.

Your rights & responsibilities

4.1

Once Your Cask has been paid for, and it has been filled, You will be entitled to six vouchers for the that will permit a free tour of the Distillery. These vouchers are fully transferrable, do not have an expiry date and are subject to our normal terms and conditions.

4.2

Your Cask will be monitored regularly, and You will receive a Yearly update via Our American App of its evolution using a proprietary taste ‘spidergram’. 

4.3

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.

4.4

You hereby warrant and represent to Us that You have complied, are complying and will comply with prevailing US and UK regulations applicable to all contracts of this nature, stating that you are a private customer who is purchasing the Product for private and non-commercial use.

4.5

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

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 and do not guarantee any minimum level of Cask filling.

4.7

You must notify Us immediately of any change to Your address or contact details. If 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.

4.8

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 & 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 & 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 Filling Date payment shall be due. 

6.2

You agree that You shall pay the amounts due and owing under the invoice within in the time set out in the covering letter.

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 includes the costs of delivery to a bond in the USA, insurance, overheads, packing, loading and carriage of bottled Product. Cask owners will be liable for all Import, Duties, Federal, State, and Local Taxes at the time of import.

For the avoidance of doubt the Price excludes the cost of storage and insurance of the Product after the expiry of eight (8) Years from the Filling Date and the Price will not be reduced in the event that the Product is bottled before the expiry of eight (8) 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:

1. Loss of profits
2. Loss of business
3. Depletion of goodwill or similar losses
4. Loss of anticipated savings
5. Loss of use
6. Loss or corruption of data or information
7. 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 e-mail 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 e-mail 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 by implied into 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.

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.