ABOUT US
THE CASK RESERVE is a trading name of HAH WHISKY LIMITED, a company incorporated and registered in England with company number 09768972 whose registered office is at Create Business Hub, Ground Floor 5 Rayleigh Road, Hutton, Brentwood, Essex, England, CM13 1AB. Our VAT number is 323204061. We operate the website thecaskereserve.com.
THIS AGREEMENT
Cask Reserve is in the business of buying and selling cask spirits held bonded storage. The terms and conditions set out in this Agreement shall govern how Cask Reserve may sell cask spirits to you (Buyer). No other terms are implied by trade, custom, practice or course of dealing.
Agreed terms
1. Interpretation
1.1 Definitions
Business Day: a day other than a Saturday, Sunday or public holiday, in England when banks in London are open for business.
Cask Contract: a contract for the sale and purchase of Casks as defined in paragraph 1 of Schedule 1.
Casks: cask spirits held in duty suspended storage within the United Kingdom.
Contract Note: a contract note or invoice in respect of the sale of Casks.
Delivery Order: a delivery order confirming transfer of title to Cask(s).
Duty Representative: persons authorised by HMRC to act as duty representatives in accordance with the WOWGR Regulations.
Group: in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
HMRC: His Majesty’s Revenue and Customs
Parties: Cask Reserveand the Buyer.
Restricted Customer: a person identified from time to time in writing as a client of Cask Reserve provided that:
a) a Restricted Customer shall exclude any person with whom the Buyer has already had bona fide Cask transaction or negotiations with prior to the notification date; and
b) in the case of a dispute, such customer relationship can be authenticated by the Party seeking to establish or exclude such person as a Restricted Customer.
Restricted Supplier: a person identified from time to time in writing as a supplier of Cask Reserve provided that:
a) a Restricted Supplier shall exclude any person with whom the Buyer has already had bona fide Cask supply transactions or negotiations with prior to the notification date; and
b) in the case of a dispute, such supply relationship can be authenticated by the Party seeking to establish or exclude such person as a Restricted Customer.
VAT: value added tax chargeable in the UK.
Warehousekeeper: a person authorised as an excise warehousekeeper by HMRC pursuant to the WOWGR Regulations.
WOWGR: authorisation from HMRC to act as a “registered owner” of duty suspended goods (including Casks).
WOWGR Regulations: The Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (SI 1999/1278).
1.2 Interpretation:
(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(b) Any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes emails.
2. Term & Termination
2.1 This Agreement applies to every Cask Contract entered into by the Parties.
2.2 Without limiting its other rights or remedies, either Party may terminate Cask Contracts with immediate effect by giving written notice to the other Party if:
(a) the other Party commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within 7 days of that Party being notified in writing to do so. For the avoidance of doubt a breach of the representations and undertakings in clause 3 (HMRC Representations) and clause 4 (Anti-bribery & Corruption) shall be considered material breaches;
(b) the other Party 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), 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.
2.3 Termination of a Cask Contract, however arising, shall not affect any of the Parties’ rights and remedies that have accrued as at termination. In particular, each Cask Contract entered into prior to the date of termination shall continue to be governed by the terms of this Agreement notwithstanding the termination of this Agreement.
2.4 Any provision of this Agreement 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.
3. HMRC Representations
3.1 Each Party represents and warrants to the other that it is either:
(a) properly authorized by HMRC to buy, sell and store Casks in bonded storage under a valid and current WOWGR authorization; or
(b) it has a validly appointed agent in respect of the casks to be bought or sold who is properly authorized by HMRC to buy, sell and store Casks in bonded storage (WOWGR Agent); or
(c) it is an overseas person and has appointed a HMRC licensed Duty Representative to act as its duty representative in respect of Casks bought or sold.
3.2 Each Party further undertakes to inform the other without delay if:
(a) they have their WOWGR authorization revoked, suspended or the terms and conditions of such license are amended in any way;
(b) they have appointed a WOWGR Agent and that WOWGR Agent has:
(i) their WOWGR authorization revoked, suspended or the terms and conditions of such license are amended in any way; or
(ii) ceased to act as the Party’s WOWGR Agent.
(c) they have appointed a Duty Representative and that Duty Representative has:
(i) their license revoked, suspended or the terms and conditions of such license are amended in any way; or
(ii) ceased to act as the Party’s Duty Representative.
3.3 Where neither 3.1(a) nor 3.1(c) applies to the Buyer in respect of a Cask Contract, the Buyer must hold the Casks, at Cask Reserve’s election:
(a) under the Cask Reserve’s WOWGR where the Cask Reserve shall act as “registered owner” for and on behalf of the Buyer. In such case (i) Cask Reserve shall act as bailee for the Buyer and the Buyer acknowledges that the Cask(s) shall be sub-bailed to a Warehousekeeper for proper storage in accordance with the WOWGR Regulations; and (ii) the Buyer shall indemnify Cask Reserve for any direct or indirect costs and expenses, loss or damage incurred by Cask Reserve, the Warehousekeeper or the Buyer in connection with such arrangement; or
(b) under the WOWGR of a third party that has:
(i) agreed in writing to accept the transfer of the Cask(s) as “registered owner” for and on behalf of the Buyer;
(ii) been notified to Cask Reserve in writing; and
(iii) been approved by Cask Reserve.
3.4 In performing its obligations under this Agreement, each Party undertakes to the other to comply with all applicable laws, statutes, regulations (including those WOWGR Regulations) from time to time in force in relation to the excise goods covered by this Agreement and shall upon request provide such documentation, certificates and licenses as is necessary to demonstrate compliance with this clause.
4. Anti-bribery and anti-corruption
4.1 Each Party shall in the performance of this Agreement and any Cask Contracts:
(a) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
(d) notify the other Party (in writing) if it becomes aware of any breach of clause 4.1(a) or clause 4.1(b), or has reason to believe that it or any person associated with it has received a request or demand for any undue financial or other advantage;
(e) upon the written request of the other Party, certify in writing signed by an officer, compliance with this clause 4 including such supporting evidence of compliance as the other Party may reasonably request.
5. Non-Solicitation & Non-circumvention
5.1 The Buyer shall not, without the prior written consent of Cask Reserve, at any time from up and until the expiry of two years after the date of the latest Cask Contract, solicit or entice away from Cask Reserve or employ or attempt to employ any person who is, or has been, engaged as an employee or consultant of Cask Reserve.
5.2 If the Buyer (or a member of its Group) commits any breach of this Clause 5.1, the Buyer shall, on demand, pay to Cask Reserve or relevant Group company a sum equal to one year’s basic salary or the annual fee that was payable Cask Reserve or relevant Group company to the relevant person. The Parties confirm that these liquidated damages are reasonable and proportionate to protect the legitimate interest of the Parties in performance.
5.3 Cask Reserve acknowledges that in order for the Buyer to diligence a prospective transaction it may be necessary from time to time to reveal details of it suppliers and customers. In order to protect the legitimate business interests of Cask Reserve, the Buyer covenants with the other for itself and as agent for each Group company that it shall not (and shall procure that no member of its Group shall) (except with the prior written consent of Cask Reserve) transact in Cask spirits with any Restricted Customer or Restricted Supplier of Cask Reserve. The Parties shall be bound by the covenant set out in this Clause 5.3 during the term of this Agreement, and for a period of 2 years after the latest Cask Contract entered into between the Parties.
5.4 If the Buyer (or a member of its Group) commits any breach of Clause 5.3, the Buyer shall, on demand, pay to the Cask Reserve or its relevant Group Company a sum equal to 50% of the profit earned on the sale and purchase of any relevant Casks.
6. Cask Contracts
6.1 Cask Contracts shall be concluded on the terms set out in Schedule 1 of this Agreement. The conditions in this Agreement shall apply to each Cask Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
7. General
7.1 Confidentiality.
(a) Each Party undertakes that it shall not at any time during this Agreement, and for a period of two years after termination or expiry of this Agreement, disclose to any person any confidential information concerning Cask Contracts, the business, affairs, customers, clients or suppliers of the other Party or of any member of the Group of companies to which the other Party belongs, except as permitted by clause 7.1(b).
(b) Each Party may disclose the other Party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors 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, contractors, subcontractors or advisers to whom it discloses the other Party’s confidential information comply with this clause 7.1; 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 Agreement.
7.2 Entire agreement.
This Agreement 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.
7.3 Variation.
No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
7.4 Waiver.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
7.5 Severance.
If any provision or part-provision of this Agreement 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 this Agreement. If any provision or part-provision of this Agreement is deemed deleted under clause 7.5 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.
7.6 Further assurance.
Each Party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
7.7 Notices.
(a) Any notice given to a Party under or in connection with this Agreement 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 to the address specified below:
(A) For Cask Reserve: tm@thecaskreserve.com with a copies to craig@hahcws.com and legal@hahcws.com;
(B) For the Buyer: to the email address set out in any invoice, delivery order or advised in writing from time to time.
(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 9.00 am on the second Business Day after posting; or
(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 7.7(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.
7.8 Third party rights.
No one other than a Party to this Agreement shall have any right to enforce any of its terms.
7.9 Governing law.
The Agreement, 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.
7.10 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 Agreement or its subject matter or formation.
Schedule 1 – Terms & Conditions of Cask Contracts
1. Cask Contract
1.1 A Cask Contract is made up of the following:
(a) a Contract Note;
(b) the Terms & Conditions set out in this Schedule 1;
(c) this Agreement; and
(d) a Delivery Order, (Cask Contract).
1.2 If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1.1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
2. Contract Note
2.1 Upon agreement of the key terms and conditions governing the sale and purchase of Casks, Cask Reserve shall send to the Buyer and the Buyer shall confirm in writing (which shall include by e-signature or email) their agreement to purchase the Casks set out in the Contract Note.
3. Payment
3.1 Full payment by the Buyer for Casks must be received in cleared funds by Cask Reserve before title is transferred in accordance with paragraph 4.
4. Passing of Risk and title
4.1 Upon agreement of the Contract Note by the Parties and receipt of payment from the Buyer in accordance with paragraph 3, Cask Reserve shall execute a Delivery Order and shall:
(a) deliver a copy of the Delivery Order to the Warehousekeeper which stores and manages the Cask(s); and
(b) provide the Buyer with a duplicate Delivery Order.
4.2 The Contract Note and Delivery Order shall evidence the Buyer’s title to the Casks. The Parties acknowledge that not all Warehousekeepers acknowledge receipt of Delivery Orders but agree to use their reasonable endeavours to procure an acknolwedgement where this is desirable.
5. Representations & Warranties
5.1 Cask Contracts shall be subject to the representations and warranties set out in the Agreement (including but not limited to the representations in clause 3) which shall be deemed to repeat upon the agreement of a Contract Note and on the passing of title to Cask(s) in accordance with paragraph 4.
5.2 As Cask(s) are held in bonded storage under the care and custody of the relevant Warehousekeeper(s):
(a) Cask(s) are sold “as is, where is” in the condition and quantity they are in at the date of transfer. If the Buyer wishes to investigate the condition and quality of the Cask(s), the Buyer may request (and Cask Reserve may facilitate) Cask re-gauging and samples at the Buyer’s cost;
(b) Cask Reserve makes no express or implied warranty as to the quality of any spirits sold in Casks and it is the responsibility of the Buyer to verify that the spirits are acceptable to the Buyer by requesting a sample from the Cask.
5.3 Notwithstanding paragraph 5.2, Cask Reserve warrants that immediately prior to the transfer of the Cask(s):
(a) all insurance and storage fees in respect of the Cask(s) are or will be paid by the Seller up until the date title to the Cask(s) passes to the Buyer;
(b) it is the owner of the Cask(s) and has all requisite authorities to transfer title to the Cask(s) to the Buyer.
5.4 Where the Cask(s) have naming rights (allowing the bottler of the spirit in the Cask(s) to say “Distilled at [x]”) these naming rights shall be explicitly noted in the Contract Note (“Naming Rights”). Save as for the Naming Rights explicitly set out in a Contract Note, nothing in the Cask Contract will grant you any rights in or licence to the brand or any of The Cask Reserve’s (including its affiliate company’s) or its suppliers or distiller’s intellectual property rights.
6. Taxes
6.1 Subject to paragraph 6.2, the Parties acknowledge that there should be no tax (including VAT) and duties on the sale or purchase of the Cask(s) that remain in HMRC approved bonded storage facilities.
6.2 Where taxes and duties accrue on the sale and purchase of the Cask(s) as a result of a breach of this Agreement (including the HMRC Representations), the Party who is in breach of such provisions shall bear the responsibility for such taxes and duties.
7. Delivery of Cask(s)
7.1 Unless agreed otherwise in writing in a Contract Note, the Delivery of Casks to a warehouse (other than that at which the Casks are held immediately prior to execution and exchange of the Delivery Order) shall be at the cost, responsibility and risk of the Buyer.
7.2 On a case by case basis, Cask Reserve may agree with the Buyer to arrange delivery to an approved bonded warehouse facility where the Buyer (or its WOWGR Agent) has a valid account. Such logistical arrangements shall be at the cost and risk of the Buyer and the Buyer shall indemnify Cask Reserve for all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, suffered or incurred by the Buyer in connection with the said arrangements.
7.3 The Parties acknowledge the logistical challenges of moving Cask(s) between Warehousekeeper facilities and agree that, save as explicitly set out in a Contract Note, and for any agreed Cask movements after the date of execution of the Delivery Order, time will not be of the essence.
8. Limitation of Liability
8.1 References to liability in this paragraph 8 include every kind of liability arising under or in connection with a Cask Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in these terms limits or excludes Cask Reserve’s liability for:
(a) death or personal injury caused by Cask Reserve’s negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be limited or excluded by law.
8.3 Subject to paragraph 8.2, Cask Reserve will under no circumstances be liable to Buyer for:
(a) any loss of profits, sales, business, or revenue;
(b) loss of business opportunity;
(c) loss of anticipated savings; or
(d) any indirect or consequential loss.
8.4 Subject to paragraph 8.3, our total liability to you for all losses arising under or in connection with a Cask Contract will in no circumstances exceed 100% of the purchase price of the Cask(s) which are defective or not delivered in accordance with the Cask Contract.
9. General
Clauses 7.1 to 7.10 of the Agreement shall apply mutatis mutandis to each Cask Contract, save that where the Agreement refers to “Agreement” the words “Cask Contract” will be substituted.