“We”, “Our” or “Us” means The Three Stills Company Limited and/or its successors and assignees; “Conditions” means the terms and conditions in this document;
“Contract” means a contract between Us and You for the purchase and sale of the Goods of which these Conditions form part; “You” or “Your” means the person, firm or body corporate with whom We are contracting under the Contract;
“Goods” means any product made or supplied by Us and sold under the Contract;
“Official” means any individual being Our employee or agent duly authorised by Us to negotiate the sale of Goods and where appropriate waive or vary these Conditions;
“Writing” means post, facsimile transmission, e-mail and any comparable means of communication and “Written” shall be construed accordingly.
(i) Headings are for convenience only and shall not affect the interpretation of these Conditions. These Conditions apply to Contracts for the supply of Goods by Us to the exclusion of any other conditions unless and except to the extent that:
(a) these Conditions have been superseded by any conditions which We have notified to You, and
(b) these Conditions have been cancelled waived or varied in Writing by an Official. Any such cancellation waiver or variation shall apply only to the particular Contract for which it was given. Each delivery of Goods will be regarded as a separate contract.
(c) We shall not be bound by terms or conditions set out in Your orders and these Conditions supersede and prevail over any terms and conditions referred to by You.
(ii)(a) Quotations are made subject to Goods being unsold on receipt of orders. Acceptance of Our quotations and placing of orders by You shall not bind Us until Our Written confirmation has been issued to You.
(b) Any additional alterations or modifications of an order shall need Our Written confirmation.
3. ORDERS AND SPECIFICATIONS
(i) No order submitted by You shall be held to be accepted by Us unless and until it is confirmed in Writing by an Official.
(ii) The quantity, quality, description and specification of Goods shall be set out in Our quotation.
(iii) If Goods are to be processed by Us in accordance with a specification submitted by You, You shall indemnify Us against all loss, damages, costs and expenses awarded against or incurred by Us in connection with any claim for infringement of intellectual property rights of any other person which results from Our use of Your specification.
(iv) We may make any changes in the specification of Goods which are required to conform with any applicable safety or other statutory requirements, or where Goods are to be supplied to Your specification, which do not materially affect their quality.
(v) No order which We have accepted may be cancelled by You except with Our Written agreement and on terms that You shall indemnify Us in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by Us as a result of cancellation.
(i) The price payable by You for Goods shall, subject to paragraph (ii) of this Condition, be the quoted price or the price stated by Us in Our acceptance of Your order payable in Sterling (or such other currency as We may nominate) by bank transfer to such Bank account as We may nominate, with no deduction from the issuing bank for transaction charges. All prices are where appropriate subject to Excise Duty, Value Added Tax and other applicable taxes pertaining on the despatch date. Any fees or expenses incurred in connection with producing obtaining or having legalised documents connected with the export of Goods or their import into any foreign country shall be met by You. All prices quoted are valid for 45 days from date of quotation after when they may be altered by Us without notice.
(ii) We may vary prices between receipt of Your order and despatch without notice to take account of government taxation, duties, increases in the cost of raw materials, labour, overhead expenses, packaging, transport rates, or any other similar matter which may have occurred between the date of acceptance of an order and delivery.
(iii) Where applicable You shall make all necessary arrangements to ensure the return to the despatching Authorised Warehouse Keeper (“AWK”) within the requisite time limit the relevant copy of the Accompanying Administrative Document (“AAD”) issued by UK Customs & Excise which has been duly completed by the AWK in respect of each order of Goods. If the AAD is not returned to the AWK within the time limit, You shall indemnify Us against all claims, assessments or penalties levied on Us by UK Customs & Excise as a result of such failure.
(iv) If on delivery of the Goods to You pursuant to Clause 6 the Goods have been damaged in transit or there is a discrepancy in the quantity of Goods delivered, You shall advise us accordingly within 48 hours of delivery. If You do not, You shall indemnify Us against all claims, assessments or penalties levied on Us by UK Customs & Excise as a result of such failure.
5. TERMS OF PAYMENT
(i) Unless otherwise agreed We may invoice You for the price of Goods at any time after delivery of the Goods unless the Goods are to be collected by You or You wrongly fail to take delivery of the Goods in which case We may invoice You for the price at any time after We have notified You that the Goods are ready for collection or We have rendered delivery of them. All sums due to Us in respect of the supply of the Goods shall, unless otherwise agreed in writing with Us, be paid within 30 days of the invoice date and time shall, in respect of payment, be a material condition in and of the essence of the Contract.
(ii) Without prejudice to Our other rights if You fail to make payment on the due date We may:
(a) charge interest (which shall accrue from day to day) on all sums which at any time become overdue for payment in terms of the Contract (from the time such sums become due for payment until such sums have been paid to Us in full) at 2% above the London Inter-Bank Offer Rate, or the nearest equivalent successor rate from time to time; and/or
(b) refuse to supply orders for Goods until the full outstanding sum(s) due (including interest thereon) is/are paid to Us. We shall not be liable to You for any costs, expenses, liabilities or damages which You may incur due to Our refusal to supply Goods under this paragraph.
(iii) We may appropriate any payment made by You to such Contract or Contracts as We think fit.
(i) Delivery of the Goods will be made either:-
(a) DAP (named place of delivery) (Incoterms 2010) when You bear the cost of transport, such cost to be included as a separate item in Our invoice for the Goods; or
(b) FCA (named place of delivery) (Incoterms 2010) when You bear the cost of delivery, such cost to be included as a separate item on Our invoice for the Goods; or
(c) EX WORKS (named place of delivery) (Incoterms 2010) when You bear all costs and risks involved in taking goods from named premises at Your expense.
(d) FOB (named port of shipment) (Incoterms 2010) We have delivered when the goods pass the ship’s rail at the named port of shipment, You bear the costs and risks from this point; or
(e) Such other Incoterm as may be agreed to by Us in Writing.
(ii) Any dates quoted for delivery of the Goods are approximate only and We shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by Us in Writing. The Goods may be delivered by Us in advance of the quoted delivery date on giving reasonable
notice to You.
(iii) If You fail to take delivery of the Goods or fail to give Us adequate delivery instructions at the time stated for delivery (otherwise than for reasons beyond Your reasonable control or by reason of Our fault) then without prejudice to any other right or remedy available to Us, We may store the Goods at Your expense until actual delivery takes place.
(iv)(a) Where delivery is Ex-Warehouse, transportation and insurance of the Goods from Our premises will be entirely Your responsibility. You shall be responsible for insuring the goods for their price together with any relevant duty and against all relevant risks. If You fail to insure the Goods and as a result We suffer any claim, loss or damage, penalty or assessment, You shall fully indemnify Us. Before agreeing to deliver Ex-Warehouse, We will require You to execute and deliver to Us in Our standard form, an indemnity against any such claim, loss or damage, penalty or assessment.
(b) If no instructions are given by You or if You fail to arrange transportation in accordance with said instructions, We reserve the right to store the Goods at Your expense.
7. PASSING OF RISK
The risk in the Goods shall pass to You when specified in the relevant INCOTERMS 2010 term.
8. RESERVATION OF TITLE
(i) Notwithstanding the passing of risk in the Goods under Clause 7 the property in the Goods shall remain with Us and shall be transferred to You only upon payment in full for the Goods (including where appropriate any Excise Duty, Value Added Tax and any other applicable tax payable thereon) being received by Us. If the price for the Goods is payable by installments or only part of the price has been paid, We may appropriate any installment or part payment to any part of the Goods and property in such part only shall be transferred or pass to You.
(ii) Until the transfer of property in the Goods, You shall keep Our Goods at Your premises in safe custody and separate from goods which are Your property or any third party and shall not create or permit to arise any lien, charge or encumbrance over Our Goods.
(iii)(a) If You have not paid for the Goods in full within 30 days of invoice date or within any longer period of credit agreed in writing by Us, or
(b) If You (being an individual or firm) become insolvent or commit any act of bankruptcy, or (being a Company) have a receiver or administrator appointed over the whole or part of Your property or undertaking or a petition is presented or a resolution proposed for Your winding up other than as part of a bona fide solvent amalgamation orreconstruction , or
(c) If anything occurs in relation to You which in any jurisdiction to which You are subject is analogous to any of the events set out in sub-paragraph (b) of this paragraph
(iii) then at any time thereafter We may by Our authorised agents enter upon Your premises and repossess and remove at Your expense any of the Goods thereon which remain Our property.
(iv) We may at any time notwithstanding that payment in full has not been received for the Goods waive Our reservation of title thereto or to any part thereof by notice in writing to You whereupon property in the Goods shall forthwith pass to You.
9. LIABILITY FOR DEFECTS
(i) The warranty and undertakings contained in the following sub-paragraphs are given by Us in lieu of and to the exclusion of any other representations, guarantees, conditions or warranties expressed or implied statutory or otherwise:-
(ii) We undertake to use sound materials, methods of manufacture and sound containers at all times. If within 14 days from the date of delivery, You claim that any of the Goods are defective You shall give Us full opportunity to inspect and test such Goods.
(iii) If We agree that the Goods were defective at the time of delivery in either materials or methods of manufacture or by reason of being contained in containers supplied by Us, We may required You to return the Goods at Our cost to Our premises and We will decide either:-
(a) to replace the Goods free of charge at the same place of delivery as the original Goods or such place of equivalent distance as You may reasonably request, or
(b) to credit the value of such defective Goods to Your account with Us.
(iv) No claim shall be made by You for expenditure You incur as a result of the Goods having been replaced by Us in accordance with sub-paragraph (a) above.
(v) We hereby also expressly exclude:
(a) any liability whatsoever for consequential loss or damage caused by or arising out of the use of the Goods or in respect of the Goods including, but not limited to, loss of profits or other consequential losses incurred as a result of Our negligence; or
(b) any liability whatsover for loss or damage arising from any defects caused by negligent or improper use, storage or handling of the Goods or the treatment or use of the Goods, in a manner other than that for which they were manufactured, sold or supplied.
(vi) Nothing in this Clause shall be construed as limiting or excluding liability for death or personal injury arising due to negligence by or on Our behalf, which shall be unlimited.
(vii) You shall have no right of set off in respect of any claims which You may have against Us.
10. CONDITIONS OF RESALE
(i) All Goods are sold on the express condition that they will not be resold to any third party except in the form, bottles and bearing the packaging , trademarks and labels with which they are sold to You. You shall incorporate a similar Clause in all subsequent contracts of sale to Your own customers of the Goods.
(ii) Where Goods are delivered to an address outside the European Free Trade Area (“EFTA”) and are intended for consumption outside EFTA You shall not sell and shall use reasonable endeavours to ensure that subsequent buyers of the Goods do not sell the Goods inside EFTA.
11. FORCE MAJEURE
We shall incur no liability for loss, damage, deficiency, delay in delivery, non-delivery or destruction or injury attributable in whole or in part to any circumstances outside Our control.
12. BANKRUPTCY, RECEIVERSHIP OR LIQUIDATION OF THE CUSTOMER
Without prejudice to any other provision in these Conditions if:-
(i) there is any material deterioration in Your financial position; or
(ii) there is any delay in or suspension of payment by You for goods supplied to You whether by Us or by other parties; or
(iii) a receiver or administrator is appointed over the whole or any part of Your assets ; or
(iv) a resolution is passed or petition presented for Your liquidation; or
(v) You die or become apparently insolvent; or
(vi) any event occurs in relation to You which in any jurisdiction to which You are subject is analogous to any of the events set out in paragraphs (iii), (iv) and (v) of this Clause; We may in Our absolute discretion elect either to discharge the Contract or not deliver the Goods except against payment in cash or irrevocable letter of credit drawn on a reputable bank approved by Us for the purchase price of the Goods in full or to cancel the contract for the sale without further liability to You.
We reserve the right to alter or add to these Conditions at any time.
No relaxation, forbearance, delay or indulgence by Us in enforcing any rights hereunder shall affect, prejudice or restrict such right and any waiver by Us in respect of any breach of contract by You shall not operate as a waiver of any subsequent or continuing breach. Each delivery of Goods will be regarded as a separate contract for this purpose.
Anything required to be given in Writing shall be deemed to have been given if served on You personally or sent by first class post or by facsimile transmission or electronic transmission. Any such communication shall be deemed to have been served 48 hours after the time of posting where sent by post, at the time of delivery, if delivered by hand, or at the time of receipt by Us of an automated receipt from the relevant facsimile machine or electronic mail system.
16. SEPARATE AND SEVERABLE
Each Clause in these Conditions shall be separate and severable and enforceable accordingly.
These Conditions shall be subject to the law of Scotland and You agree to the exclusive jurisdiction of the Scottish Courts.