Terms & Conditions of Sale
The customer's attention is drawn in particular to the provisions of clause 8.
1. Definitions and interpretation
Business Day: a day, other than a Saturday or Sunday, when banks in Edinburgh are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
Contract: the contract between Saltire Rare Malt and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Saltire Rare Malt.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or in the Customer's written acceptance of Saltire Rare Malt's quotation, as the case may be.
Saltire Rare Malt: Saltire Rare Malt Limited (a company incorporated in Scotland with registered number SC720612).
Specification: any specification for the Goods, including any related samples and images, that is agreed in writing by the Customer and Saltire Rare Malt.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assignees.
(c) A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written excludes fax, but includes email.
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 law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods 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 The Order shall only be deemed to be accepted when Saltire Rare Malt issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed on, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, descriptive matter or advertising produced by Saltire Rare Malt and any descriptions or illustrations contained in Saltire Rare Malt's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by Saltire Rare Malt shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The Goods are described in Saltire Rare Malt's catalogue or brochure appearing on its website as modified by any applicable Specification.
3.2 Saltire Rare Malt reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements, and Saltire Rare Malt shall notify the Customer in any such event.
4.1 Saltire Rare Malt shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of despatch, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if Saltire Rare Malt requires the Customer to return any packaging materials to Saltire Rare Malt, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Saltire Rare Malt shall reasonably request. Returns of packaging materials shall be at Saltire Rare Malt's expense.
Clause 4.1 shall not apply to web-based sales.
4.2 Saltire Rare Malt shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Saltire Rare Malt notifies the Customer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Saltire Rare Malt shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Saltire Rare Malt with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Saltire Rare Malt fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Saltire Rare Malt shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Saltire Rare Malt with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of Saltire Rare Malt notifying the Customer that the Goods are ready then, except where such failure or delay is caused by a Force Majeure Event or Saltire Rare Malt's failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which Saltire Rare Malt notified the Customer that the Goods were ready; and
(b) Saltire Rare Malt shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which Saltire Rare Malt notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Saltire Rare Malt may resell or otherwise dispose of part or all of the Goods.
4.8 Saltire Rare Malt may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Saltire Rare Malt warrants that on delivery the Goods shall:
(a) conform in all material respects with their description; and
(b) be free from material defects in design, material, and workmanship.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to Saltire Rare Malt within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) Saltire Rare Malt is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Saltire Rare Malt) returns such Goods to Saltire Rare Malt's place of business at the Customer's cost,
Saltire Rare Malt shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
5.3 Saltire Rare Malt shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow Saltire Rare Malt's oral or written instructions as to the storage and/or use of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Saltire Rare Malt following any drawing, design or specification supplied by the Customer;
(d) the Customer alters such Goods without the written consent of Saltire Rare Malt;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Saltire Rare Malt shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any replacement Goods supplied by Saltire Rare Malt.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Saltire Rare Malt receives payment in full (in cash or cleared funds) for the Goods and any other goods that Saltire Rare Malt has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Saltire Rare Malt's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Saltire Rare Malt immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
(e) give Saltire Rare Malt such information as Saltire Rare Malt may reasonably require from time to time relating to:
(ii) the ongoing financial position of the Customer.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Saltire Rare Malt receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Saltire Rare Malt’s agent; and
(b) title to the Goods shall pass from Saltire Rare Malt to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer:
(a) Saltire Rare Malt may by notice in writing, terminate the Customer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
(b) Saltire Rare Malt may at any time require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1 The price of the Goods shall be the price set out in the Order or, if no price is quoted, the price set out in Saltire Rare Malt's price list in force and appearing on its website as at the date of delivery.
7.2 Saltire Rare Malt may, by giving notice to the Customer at any time up to five Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Saltire Rare Malt'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 Goods ordered or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Saltire Rare Malt adequate or accurate information or instructions.
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Saltire Rare Malt at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance, and transport of the Goods, which shall be invoiced to the Customer.
Please note: Saltire Rare Malt may also sell excluding VAT and duty from a HMRC licensed bonded warehouse.
7.4 Saltire Rare Malt may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.5 The Customer shall pay each invoice submitted by Saltire Rare Malt:
(a) within 30 days of the date of the invoice, unless other terms are agreed separately in writing; and
(b) in full and in cleared funds to a bank account nominated in writing by Saltire Rare Malt, and
time for payment shall be of the essence of the Contract.
7.6 If the Customer fails to make a payment due to Saltire Rare Malt under the Contract by the due date then, without limiting Saltire Rare Malt's remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of Scotland base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.1 Saltire Rare Malt has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover Saltire Rare Malt has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, delict, under statute or otherwise (including liability arising from negligence).
8.3 Nothing in the Contract limits any liability of Saltire Rare Malt which cannot legally be limited, including 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;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
8.4 Subject to clause 8.3, Saltire Rare Malt's total liability to the Customer shall not exceed the amount of its relevant insurance cover.
8.5 Subject to clause 8.3, the following types of loss are wholly excluded:
(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.
8.6 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, Saltire Rare Malt 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 ten days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its bankruptcy, entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, 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 so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Saltire Rare Malt may suspend provision of the Goods under the Contract or any other contract between the Customer and Saltire Rare Malt if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d) or Saltire Rare Malt 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, Saltire Rare Malt 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 Saltire Rare Malt all of Saltire Rare Malt's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Saltire Rare Malt shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination of the Contract, however arising, 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 the Contract which 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 of the Contract shall remain in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for eight weeks, the party not affected may terminate the Contract by giving twenty days' written notice to the affected party.
11.1 Assignation and other dealings
(a) Saltire Rare Malt may at any time assign, transfer, charge, subcontract, declare a trust over 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, 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 Saltire Rare Malt.
(a) The 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
11.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 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.
11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email (where Saltire Rare Malt is the recipient) to info@saltireraremalt.com; (where the Customer is the recipient) to the Customer’s email address as specified in the Order.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the fifth Business Day after posting; and
(iii) if sent by email, at the time of transmission or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.6(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
11.8 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 Scotland.
11.9 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall 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.