Terms and Conditions for the Supply of Products

The customer's attention is drawn in particular to the provisions of clause 10.

1. Interpretation

1.1 Definitions:

ADD and AWRS Policy: the Supplier’s Alcohol Due Diligence and Alcohol Wholesaler Registration Scheme policy, a copy of which can be provided by the Supplier to the Customer upon request.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Collection Location: the Supplier’s premises or such other location as may be advised by the Supplier prior to delivery, as further defined at clause 4.4.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.4.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions.

Customer: the person or firm who purchases the Products from the Supplier.

Customer Account Form: the account form issued by the Supplier relating to the Customer containing details specific to the Customer’s account, as agreed between the Customer and Supplier.

Delivery: completion of delivery of an Order in accordance with clause 4.3 or clause 4.4.

Delivery Date: the date specified for delivery of an Order in accordance with clause 2.3 (as may be amended by the Supplier in accordance with clause 2.4).

Delivery Location: the Customer’s premises as set out in the Order, as further defined at clause 4.3.

Duty: is the alcohol duty tax which is chargeable on the Product (as may be amended from time to time).

Force Majeure Event: an event or circumstance beyond a party's reasonable control.

Order: the Customer's order for the Products, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's estimate, or creation of an order acknowledgement, as the case may be.

Products: the products as set out in the Supplier’s estimate/order acknowledgement, as confirmed in the Order.

Supplier: www.organicwhisky.com limited (trading as Dà Mhìle Distillery) (registered in Scotland with company number SC270052).

Website: the Supplier’s website, being www.damhile.co.uk

1.2 Interpretation:

(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b) 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.

2. Basis of contract

2.1 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.

2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.

2.3 Each Order shall:

(a) specify the type and quantity of Products ordered;

(b) specify whether the Products will be delivered by the Supplier to Customer, or whether the Customer will collect the Products from the Supplier;

(c) specify the requested Delivery Date by which the Customer would like the Products specified in the Order delivered to the Delivery Location as well as the Delivery Location address, or when the Customer would like the Products ready for collection at the Collection Location (as applicable).

2.4 The Supplier shall confirm to the Customer (or otherwise) whether the requested Delivery Date is acceptable to the Supplier. In the event that the requested Delivery Date is not acceptable to the Supplier, the Supplier shall inform the Customer of a revised delivery date which shall then be the Delivery Date.

2.5 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, usually by estimate or order acknowledgement, at which point the Contract shall come into existence. For the avoidance of doubt, the Supplier shall be free to accept or decline any Order at its absolute discretion.

2.6 Without prejudice to the Supplier’s right to reject or accept an Order at its absolute discretion under clause 2.5, the Supplier will not accept any Order where money is owed by the Customer to the Supplier in relation to any previous order, or where in the reasonable opinion of the Supplier the Customer’s account with the Supplier is not of good standing.

2.7 The Supplier has the right to perform credit check and money laundering checks in relation to the Customer at any time. The Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if, in the reasonable option of the Supplier, the Customer fails any checks which may be undertaken in accordance with this clause.

2.8 Once the Order has been accepted by the Supplier in accordance with clause 2.5, the Customer may not amend or cancel an Order (unless otherwise agreed in writing by the Supplier).

2.9 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.10 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in any Supplier's catalogues or brochures or the Supplier’s Website are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.

2.11 An estimate for the Products given by the Supplier shall not constitute an offer. An estimate shall only be valid for a period of 5 Business Days from its date of issue.

3. Products

3.1 The Products are described in the Supplier's wholesale price list as provided to the Customer from time to time (or as otherwise notified by the Supplier).

3.2 The Supplier reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.

4. Delivery

4.1 The Supplier shall ensure that each delivery of the Products is accompanied by a delivery note that shows all relevant Customer and Supplier reference numbers, the invoice date, the type and quantity of the Products (including the code number of the Products, where applicable) and special storage instructions (if any).

4.2 Where the Supplier is to deliver the Products, the Supplier shall deliver such Products once they are ready. At the Supplier’s discretion, the Product may be ready for delivery on or at any time before the Delivery Date. Where the Customer is to collect the Products from the Supplier, the Products shall be collected on the Delivery Date. The Products shall be delivered or collected (as applicable) in accordance with clause 4.3 or clause 4.4.

4.3 Where the Order specifies that the Products are to be delivered to the Customer by the Supplier (or the Supplier’s nominated third party), subject always to clause 4.5, the Supplier (or the Supplier’s nominated third party) shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) on or before the Delivery Date. Delivery is completed when the Supplier (or the Supplier’s nominated third party) places those Products at the Customer's disposal at the Delivery Location.

4.4 Where the Order specifies that the Products are to be collected by Customer (or the Customer’s nominated third party) from the Supplier, subject always to clause 4.5, the Customer (or the Customer’s nominated third party) shall collect the Products from the Supplier’s premises at Dà Mhìle Distillery, Glynhynod Farm, Llandysul, Ceredigion, SA44 5JY or such other location as may be advised by the Supplier prior to delivery (Collection Location) on or before the Deliver Date. Delivery is completed on the completion of loading of the Products specified in the Order onto the Customer’s (or the Customer’s nominated third party’s) carrier at the Collection Location.

4.5 Any Delivery Date is approximate only, and the time of delivery is not of the essence. Delays in the delivery of an Order shall not entitle the Customer to:

(a) refuse to take delivery of the Order; or

(b) claim damages; or

The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

4.6 If the Customer fails to take or accept delivery of the Products on or before the Delivery Date (following the notification under clause 4.2), then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:

(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the Delivery Date (or any earlier date as notified by the Supplier under clause 4.2); and

(b) the Supplier shall store the Products until delivery takes place and charge the Customer for all related costs and expenses (including insurance).

4.7 If ten Business Days after the Delivery Date (or any earlier date as notified by the Supplier under clause 4.2) the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, may charge the Customer for any shortfall below the price of the Products.

5. Quality

5.1 The Supplier shall manufacture, pack and supply the Products in accordance with all generally accepted industry standards and practices that are applicable.

5.2 The Products supplied to the Customer by the Supplier under this Contract shall:

(a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended);

(b) comply with all applicable statutory and regulatory requirements.

5.3 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.

5.4 The Customer may reject any Products delivered to it that do not comply with clause 5.2, provided that:

(a) notice of rejection is given to the Supplier within 7 calendar days of Delivery;

(b) none of the events listed in clause 5.6 apply.

5.5 If the Customer fails to give notice of rejection in accordance with clause 5.4, it shall be deemed to have accepted these Products.

5.6 The Supplier shall not be liable for the Products' failure to comply with the provisions set out in clause 5.2 if, in the Supplier’s reasonable opinion:

(a) the Customer makes any further use of those Products after giving notice in accordance with clause 5.4;

(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions for the storage, commissioning and use of the Products or (if there are none) good trade practice regarding the same;

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;

(e) the defect is within normal industry standards;

(f) the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.7 If the Customer rejects Products under clause 5.4 and the Supplier is satisfied that any Products delivered to it do not comply with clause 5.2 then, at the Supplier’s option, the Customer shall be entitled to require the Supplier to repair or replace the rejected Products.

5.8 Once the Supplier has complied with the Customer's request, it shall have no further liability to the Customer for the rejected Products' failure to comply with clause 5.2.

5.9 Any defective Products which are rejected in accordance with this clause shall be immediately returned to the Supplier at the Supplier’s cost. For the avoidance of doubt, in the event that the Supplier is of the reasonable opinion that the Products do in fact comply with clause 5.2, the costs incurred relating to any returned Products shall be borne by the Customer.

5.10 The terms of this Contract shall apply to any repaired or replacement Products supplied by the Supplier.

6. Title and risk

6.1 The risk in the Products shall pass to the Customer on Delivery.

6.2 Title to the Products shall not pass to the Customer until the earlier of:

(a) the Supplier receives payment in full (in cash or cleared funds) for the Products and any other products that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; and

(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Products has passed to the Customer, the Customer shall:

(a) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1; and

(e) give the Supplier such information relating to the Products as the Supplier may require from time to time.

6.4 Subject to clause 6.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

6.5 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy the Supplier may have:

(a) the Customer's right to resell the Products or use them in the ordinary course of its business ceases immediately; and

(b) the Supplier may at any time:

(i) require the Customer to deliver up all Products in its possession that have not been resold; and

(ii) 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.

7. Price and payment

7.1 The price of the Products shall be the price set out in the estimate/order acknowledgement as issued by the Supplier to the Customer, as confirmed in the Order.

7.2 The Supplier may, by giving notice to the Customer at any time before Delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:

(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

7.3 The price of the Products:

(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;

(b) excludes the costs and charges of delivery and shipping of the Products, which the Customer shall additionally be liable to pay to the Supplier at the rate quoted in the estimate or laid out in the order acknowledgement; and

7.4 The Supplier may invoice the Customer for the Products on or at any time after the Order is accepted by the Supplier in accordance with clause 2.5.

7.5 Unless alternative credit terms have been agreed and set out in the Customer Account Form, the Customer shall pay the invoice:

(a) by BACS transfer in full and in cleared funds to the bank account nominated in writing by the Supplier; or

(b) by cash given directly to the Supplier (subject always to Supplier being satisfied that they are willing to accept payment in such a manner and the acceptance of payment in such a manner is in accordance with the Supplier’s internal procedures);

as soon as possible following receipt of the invoice issued under clause 7.4, but in any event must be paid in cleared funds no later than the Delivery Date. The Supplier shall be under no obligation to deliver the Product and shall not dispatch or deliver the Product to the Customer until the invoice relating to any such Product is paid and received in full by the Supplier. Time for payment is of the essence.

7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

8. Compliance with laws and policies

8.1 The Customer shall comply with:

(a) all applicable laws, statutes, regulations and codes from time to time in force relating to this Contract, including without limitation having the necessary approvals under the Alcohol Wholesaler Registration Scheme (AWRS) (where applicable to the Customer); and

(b) the Supplier’s ADD and AWRS Policy.

8.2 The Supplier may terminate the agreement with immediate effect by giving written notice to the Customer if the Customer commits a breach of clause 8.1.

9. Termination

9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Products under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or 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, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.

9.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

10. Limitation of liability

10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

10.2 Subject to clause 10.1:

(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b) the Supplier'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, shall in no circumstances exceed the price paid for the Product to which the liability relates.

11. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 weeks, the party affected may terminate this Contract by giving 7 days written notice to the unaffected party.

12. General

12.1 Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

12.2 Confidentiality.

(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).

(b) Each party may disclose the other party's confidential information:

(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

12.3 Entire agreement.

(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

12.7 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.8 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

12.9 Governing law. 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, shall be governed by and construed in accordance with the law of England and Wales.

12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.