Terms and Conditions of Sale
Definitions
In these Terms and Conditions, the following words and phrases shall have the following meanings, unless the context otherwise requires:
“Quotation” means the formal offer of the Product by the Seller to the Buyer detailing the total cost and description of the Product.
“Product” means any item available for purchase from Spirited including casks of spirits, whisky and bottles, as detailed in the Sales Order.
“Sales Order” means the formal confirmation to purchase the Product.
“Buyer” means a person or company who buys or contracts to buy a Product.
“Seller” means Spirited Limited (or Spirited) who sells or contracts to sell a Product to a Buyer.
“Regauge” means the process of measuring the contents of a cask.
“OLA” means Original Litres of Alcohol as measured when the cask was originally filled.
“RLA” means Regauged Litres of Alcohol as measured by the most recent regauge.
“AYS” means Age of Youngest Spirit, i.e., the cask’s birthday.
“Bottles”, unless explicitly otherwise defined, means 700 millilitre portions of whisky from cask.
“Sampling” or “Sample” means to draw or to have drawn a small portion of liquid from the cask for the purposes of inspection.
“The Angel’s Share” means the gradual evaporation of whisky from the cask as the whisky matures. This is estimated at approximately two (2) percent of the cask’s contents every year during maturation.
“ABV” means the Alcohol By Volume, which refers to the metric used to gauge the percentage (%) of pure alcohol in an alcoholic beverage.
1. ORDERING PRODUCT
1.1. These are the terms and conditions of sale for Spirited Limited, a company incorporated in Hong Kong (registration number 76116273) with registered office at 4/F, Lee Garden Three, 1 Sunning Road, Causeway Bay Hong Kong (“Seller”). These conditions together with all Quotations and Sales Order confirmations form the Agreement between the Supplier and the Buyer.
1.2. The Buyer places a Sales Order for the Product from the Seller by accepting a Quotation. Each Sales Order will constitute a separate offer by the Buyer to purchase the Product specified in the Quotation. A Sales Order will not be binding on the Seller until the Seller acknowledges acceptance or commences the execution of the Sales Order. The Seller may, in its discretion, accept or reject in whole or part any Sales Order.
1.3. If the Seller is unable to proceed with the supply of the Product due to unavailability, the Seller reserves the right to terminate this Agreement and the Seller will refund any paid amounts to the Buyer in accordance with Clause 11.
1.4. The Buyer must be legally able to enter into binding contracts to purchase any Product from the Seller.
2. PRICING AND PAYMENT
2.1.Subject to the purchase price reduction as stipulated in Clause 12.4, the purchase price for the Product specified in the Sales Order is payable within seven (7) days after the later of (i) the Buyer’s receipt of the Seller’s written confirmation on its acceptance of the Sales Order and (ii) the Buyer’s receipt from the Seller a written report on the findings of the Regauge and a written report on the inspection for the conditions of the cask pursuant to Clause 12.2.4.
2.2. If payment is not made in accordance with this clause, the Seller at its sole discretion may terminate this Agreement.
2.3. The buyer is solely liable for payment of all import duties and customs.
3. PRODUCT
3.1. The figures stipulated within the Sales Order are based on the Seller’s most recent calculations as of the date of the latest Regauge, if applicable, prior to the Buyer’s Sales Order. Maturing whisky within a cask for any given time is a natural process, and the ultimate output may differ from these calculations. As such, the Buyer acknowledges and agrees to the following in relation to their Order placed under the Sales Order:
3.1.1. The number of bottles produced from the cask is estimated as of the date of the latest Regauge and may prove to be fewer or more than the estimated quantity stated in the Sales Order;
3.1.2. Approximately 2% of the contents of each cask will evaporate through the wooden cask each year of the maturation period, which is an entirely natural process known as the “The Angel’s Share”, and will further reduce the estimated quantity over time;
3.1.3. The cask strength of the Product is an estimate based on the latest Regauge or Sampling;
3.1.4. The total number of bottles that the Buyer will receive for the purchase price specified in the Sales Order may be fewer or more than the estimated quantity stated in the Sales Order and will depend on several factors including the degree of “The Angel’s Share”. Therefore, the Buyer shall be entitled to the followings:
3.1.4.1. reduction of the purchase price specified in the Sales Order pursuant to Clause 12.4; and
3.1.4.2. remedies under Clause 13.3, resulting from an event that a Regauge performed pursuant to Clause 13.1 returns with a RLA found to be more than two (2) per cent lower than the values specified in the Sales Order.
3.1.5. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and the contents shall not be binding on the Seller.
4. CERTIFICATE AND STORAGE
4.1. The Seller agrees to issue and deliver a payment receipt to the Buyer upon receipt of funds from the Buyer. The payment receipt, the Sales Order (where applicable, with the new purchase price pursuant to Clause 12.4) and this Agreement together form the confirmation of ownership to the Buyer.
4.1.1. A delivery order shall be provided to the Buyer (or to such other person or entity as the Buyer may direct) once available and shall confirm the bonded warehouse in which the cask will be stored and the cask details as recognized by the warehouse.
4.1.2. In the event that the Seller cannot fulfil the transfer of ownership to the Buyer (or to such other person or entity as the Buyer may direct) within ninety (90) days from the date on which the Buyer pays the purchase price as stipulated in Clause 2.1, the Buyer shall be entitled to a refund of all the money paid to the Seller upon expiry of the ninety (90) days.
4.2. Unless otherwise agreed, storage for the first three years is included in the purchase price specified in any Sales Order (or as amended or reduced pursuant to Clause 12.4). After three years, fees payable will be subject to the Bonded Storage Warehouse’s price list.
5. TERMINATION AND CANCELLATION
5.1. The Seller may by written notice to the Buyer immediately terminate this Agreement if the Buyer fails to make payment of any amount in accordance with this Agreement or otherwise breaches this Agreement.
5.2. In the event of such termination, the Buyer shall be liable to pay to the Seller for the Sales Order placed by the Seller up until the date of termination and such amount shall be a debt immediately due and owing. Upon receipt of the full payment of such Sales Order, the Seller shall fulfil the Order by providing the Product in accordance with this Agreement as if it has not been terminated.
5.3. If the report on inspection for the conditions of the cask as stipulated in Clause 12.3 shows leakage of the liquid or contents from the cask specified in the Sales Order, the Buyer shall not be liable to purchase or make any payment for the cask and shall be entitled to terminate this Agreement, and the Seller shall refund to the Buyer all amount paid by the Buyer for the cask within five (5) business days from the date of termination.
6. ANTI-MONEY LAUNDERING
6.1. The Buyer will provide such documentary evidence as the Supplier may reasonably request in order to comply with applicable HK AML and KYC legislation. The Seller shall be entitled to terminate an accepted Sales Order for a Product where the Buyer fails to provide such evidence. Where, prior to such termination, the Seller had to pay a deposit to the original seller of that Product in order to ensure its availability for the Buyer, the Seller does not warrant that any such deposit will be refundable in the event of such termination.
7. DISCLAIMER
7.1. Subject to the terms and conditions in this Agreement, the Seller provides the Product on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law.
7.2. Without limiting the other terms of this clause, the Buyer acknowledges and agrees that:
7.2.1. Unless expressly written, any advice or recommendation given by the Seller regarding the storage, application or use of the Product is followed or acted upon entirely at the Buyer’s own risk;
7.2.2. The Seller reserves the right to make any changes in the specifications of the Product which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Product is to be supplied to the Seller’s specifications, which do not materially affect their quality or performance; and
7.2.3. The Buyer acknowledges that the Seller may be sourcing the Product from third parties and that the Seller may not therefore have full title to the Product at the date of the Sales Order. In the event that the third party fails for any reason to deliver/sell the Product to the Seller to enable it to complete this Agreement, the Seller shall advise the Buyer and refund to the Buyer any payments made by the Buyer within five (5) business days of the Seller having been informed of the unavailability of the Product or the funds having landed in the Seller’s account, whichever is later.
7.3. The Seller does not provide personal financial advice including legal, tax, and investment advice. The Buyer should instead seek counsel with their own legal and financial advisors and tax experts.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1. The Seller excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Product that are not expressly set out in this Agreement to the maximum extent permitted by law. The Buyer relies on the Product at his own risk.
8.2. Subject to the terms of this clause, the Seller’s maximum aggregate liability to the Buyer for any loss or damage or injury arising out of or in connection with the supply of goods or services under this Agreement is limited to the then current market value on a calendar year basis (in accordance with the Seller’s insurance) of the relevant Product which was purchased by the Buyer and to which the loss, damage or injury relates.
8.3. Without limitation to the other terms of this Agreement, the Seller excludes any liability to the Buyer, whether in contract, tort (excluding negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.
9. DELIVERY OF SAMPLES AND BOTTLES
9.1. If delivery of a Sample or Bottles is requested by the Buyer the delivery method and instructions will be as set out in a separate and specific Sales Order or as otherwise agreed between the parties.
9.2. The Buyer shall pay all costs associated with the delivery and insurance (during transit) of the Product as specified in the Sales Order. Port surcharges and other incidental charges are not included in the freight rate and must be paid by the Buyer within five (5) business days upon request by the Seller.
9.3. The Seller endeavours to provide the Product on time, however, cannot guarantee the Product will be delivered by such delivery date. Without limitation to the other terms in this Agreement, if the Product is not delivered to the Buyer within sixty (60) days from the date on which the Buyer pays the purchase price as stipulated in Clause 2.1, the Seller shall refund all the money paid by the Buyer to the Buyer upon the expiry of the 60 (sixty) days.
10. GENERAL
10.1. Intellectual Property Rights
10.1.1. Certain products purchased and marketing materials may be protected by copyright or other intellectual property rights, including our rights. The Buyer agrees that it will not use the Product or such marketing materials in a way that infringes those rights.
10.2. Ownership
10.2.1. The parties agree that the Seller retains full title to the Product and title will not at any time pass to the Buyer until the purchase price for the Product and all other amounts owing in respect of the Product (if any) are paid to the Seller.
10.3. Variation
10.3.1. An amendment or variation of any term of this Agreement must be in writing and signed by each party.
10.4. Entire Agreement
10.4.1. This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, undertakings, negotiations and discussions in respect of its subject matter.
10.5. Governing Law and Jurisdiction
10.5.1. This Agreement is governed by the law in force in Hong Kong.
10.5.2. The parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Hong Kong for the purpose of hearing and determining any dispute arising out of or in connection with this Agreement or its formation, existence, validity, legality, enforceability, interpretation, termination and effects.
10.6. Executors
10.6.1.References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
11. SELLER’S DISCLOSURE
11.1. Spirited Limited is committed to ensuring that each sale complies with internal disclosure policies in Sales Order to protect the interests of the Buyer and the integrity of any trade or transaction contemplated in this Agreement.
12. REFUND OR EXCHANGE
12.1. The Seller endeavours to ensure the availability and accuracy of information relating to the Product sold as per any Sales Order.
12.2. In the event that a Product becomes unavailable after the payment for the Product has already been issued by the Buyer, the Seller shall offer a full refund of any payment made in the original transaction currency to the Buyer.
12.3. Refunds shall be issued within five (5) business days of having been informed of the unavailability of the Product or the funds having landed in the Seller’s account, whichever is later.
12.4. As an alternative to any refund under this Clause 11, the Seller may propose an exchange of the Product ordered and the Buyer may, at its sole discretion, accept or refuse the proposed exchange.
13. CASK CONTENTS, REGAUGES, AND CONDITIONS OF SALE
13.1. The Seller endeavours to ensure the closest approximation possible for any purchase.
13.2. The Seller shall arrange a Regauge on the following conditions:
13.2.1. Casks under eight (8) years old are sold ‘as is’, meaning either as their Original Litres of Alcohol (“OLA”) or the Regauged Litres of Alcohol (“RLA”), whichever is available;
13.2.2. Casks between eight (8) and fifteen (15) years old will either have been regauged within the past three (3) years or a Regauge will be offered free of charge by the Seller upon purchase;
13.2.3. Casks between fifteen (15) and twenty (20) years old will either have been regauged within the past one (1) year or a Regauge will be offered free of charge by the Seller upon purchase;
13.2.4. Casks over twenty (20) years old – regardless of any recent Regauge – will be regauged and inspected for their conditions (including but not limited to leakage) prior to the full payment of the purchase price pursuant to Clause 2.1 unless otherwise instructed by the Buyer.
13.3. The Seller shall provide the Buyer with a copy of the Regauge report and if applicable, a written report on the findings of the inspection for the conditions of the cask, within 3 days after the Seller receives the report(s).
13.4. Casks are valued based on their contents and, by extension, the estimated output of Bottles yielded at the time of bottling the cask. If the number of bottles produced from the cask estimated through the Regauge performed pursuant to Clause 12.2.4 is less than the estimated quantity stated in the Sales Order, the purchase price as specified in the Sales Order shall be reduced on a pro-rata basis and the then reduced purchase price shall become the new purchase price (replacing the purchase price specified in the Sales Order) payable pursuant to the time frame stipulated in Clause 2.1.
13.5. If the written report on the findings of the inspection for the conditions of the cask shows leakage of the liquid or contents from the cask, Clause 5.3 shall apply.
14. CASK GUARANTEE
14.1. The Seller shall provide the latest Regauge in accordance with the following:
14.1.1. Casks with an AYS of less than eight (8) years shall be provided with an Original Litres of Alcohol (OLA) or Regauged Litres of Alcohol (RLA) depending on whichever is available;
14.1.2. Casks with an AYS of eight (8) years to fifteen (15) years shall have a regauge with no less than three (3) years from the date of the Sales Order;
14.1.3. Casks with an AYS of sixteen (16) to twenty (20) years shall have a regauge with no less than one (1) year from the date of the Sales Order; and
14.1.4. Casks with an AYS of twenty (20) years or more shall have a Regauge and an inspection for their conditions (including but not limited to leakage) within six (6) months from the date of the Sales Order.
14.2. The Seller shall provide the Buyer with a copy of the Regauge report and if applicable, a written report on the findings of the inspection for the conditions of the cask, within 3 days after the Seller receives the report(s).
14.3. In the event that a Regauge performed pursuant to Clause 13.1 returns with a RLA found to be more than two (2) per cent lower than the values specified in the Sales Order, the Buyer shall be eligible for a partial refund representing the value of the reduced quantity at the price per bottle specified in the Sales Order as follows:
14.3.1. The partial refund shall be calculated on a pro-rata per-bottle basis. A pro-rata per-bottle basis shall mean the value equivalent to one or more 700 millilitre Bottles (plus any remaining quantity more than [500] millilitres but less than 700 millilitres) of the Product as a result of a difference between the Sales Order and the newest Regauge.
14.3.2. In the event a Buyer wishes to exercise rights to a partial refund, a written notice must be provided to the Seller within ten (10) days from receipt of the latest Regauge report and the Seller shall refund partial payments made within thirty (30) days from the date of the written notice.
14.4. If the written report on inspection for the conditions of the cask shows leakage of the liquid or contents from the cask, the Seller shall buy back from the Buyer the cask specified in the Sales Order at the purchase price specified therein and shall pay the full purchase price to the Buyer within thirty (30) days from the date of the written report on the findings of inspections for the conditions of the cask.