1.

Cask Purchase Agreement - Terms and Conditions

1.1.

What this Agreement covers. This Agreement (which includes the Order Form) contains the terms on which we will supply our products to you.

1.2.

Please read these terms carefully. Please read these terms carefully before you submit your Order Form to us. This Agreement between us tells you who we are, the terms by which you purchase our products, how you and we may end the Agreement, what to do if there is a problem and other important information.

1.3.

Definitions. In this Agreement, the following words and terms shall have the following meanings:

"Agreement" means the Order Form and these Terms and Conditions;

"Brand" means any and all intellectual property rights subsisting in or pertaining to a Cask and any name, logos, packaging, design and/or any aspect of the get-up, look and feel of any Cask in whatever form may be applicable from time to time;

"Cask" means a spirit cask holding the Spirit;

"Distillery" means a third-party distillery from which the Spirit has originated, as identified in the Order Form;

"Initial Term" means the period of 12 months from the Start Date;

"Order Form" means the order form signed by both parties and appended to this Agreement on which you make an Order for a Cask, which these Terms and Conditions are incorporated into;

"Price" means the price for the Cask as set out in the Order Form;

"Regulations" means the Scotch Whisky Regulations 2009 as amended, modified or restated at any time;

"Spirit" means the particular distillery spirit (as identified in the Order Form) within the Cask;

"Start Date" has the meaning given on the Order Form;

"Terms and Conditions" means these terms and conditions;

"WOWGR" means the Warehousekeepers and Owners of Warehoused Goods Regulations UK 1999.

"you" means the buyer or person identified on the Order Form and "your" shall be interpreted accordingly.

1.4.

The words writing or written in this Agreement includes emails.

1.5.

Unless the context requires a different interpretation, the following rules shall be used to interpret this Agreement: (a) the word “including” means “including but not only”; (b) a reference to a “Clause” is to the relevant clause of this Agreement; (c) the headings in this Agreement do not affect the meaning of the Clauses; (d) a reference to one gender includes any other gender; and (e) words in the singular include the plural and the same shall apply the other way round.

1.6.

If there is any conflict or inconsistency between the terms set out in the body of this Agreement and the content of an Order Form, the terms set out in the body of this Agreement will take precedence.

1.7.

In some areas you will have different rights under this Agreement depending on whether you are a business customer or consumer. You are a consumer if you are an individual buying the Cask(s) from us wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession).

1.8.

References to laws or regulations in the is Agreement include such laws and regulations as amended, re-enacted or relaced form time to time.

2.1.

We are Fah Mai Holdings Limited, a company incorporated in England and Wales with company number 10817925 and having its registered office at 4 Davis Way, Fareham, United Kingdom PO141JF.

2.2.

Accordingly, references to “we”, “us” and “our“ shall be understood to mean Fah Mai Holdings Limited.

2.3.

You can contact us by telephoning us on +44 (0) 20 4552 4713, by writing to us at admin@fahmaiholdings.com or to 4 Davis Way, Fareham, United Kingdom PO141JF

2.4.

If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in the Order Form.

3.1.

Before accepting an order, you must provide us with a copy of the Order Form signed by you and the required identity documents (see Clause 4).If and when we counter-sign the Order Form, a contract will come into existence between you and us.

3.2.

If we are unable to accept your order, we will inform you of this in writing and will not invoice or charge you for the Cask(s). This might be because of unexpected limits on our resources which we could not reasonably plan for (as the number of Casks a given Distillery available to us is limited), because we have identified an error in the price or description of the Cask(s), or because we are not satisfied with documents you have provided for your identity and residential address. It is our sole discretion whether we accept an order.

4.1.

We are obliged to comply with the anti-money laundering (“AML”) legislation which applies to our business. This obliges us to carry out due diligence and other enquiries of our clients, such as you, to satisfy ourselves as to their identity.

4.2.

These enquiries may include electronic checks with commercial providers of information and may also require us to see original documents evidencing identity and address. We cannot accept money or sell a Cask until we have completed our enquiries.

4.3.

We may sometimes ask you for information about funds you are sending to us. Should you fail to co- operate with this process, or if we are not satisfied with the information that you have provided, then we will not accept your order.

4.4.

Under the terms of The Proceeds of Crime Act, we may be obliged to report any suspicion of money laundering to the National Crime Agency (“NCA”). The Act generally precludes us from notifying our clients of any such disclosure. We shall not be liable for any loss suffered by you as a result of any report to the NCA or our obligations to comply with AML.

5.1.

Any images of the Cask(s) or any Spirit on our website(s) are for illustrative purposes only.

5.2.

You acknowledge and accept that there will be a loss of both alcohol and volume while the Spirit matures in your Cask. This occurs as a result of absorption into the wood of the Cask and as a result of natural evaporation. Whilst the amount of loss might fluctuate, we anticipate that this may amount to around 1.5%- 2% loss per annum: this is often referred to as “the Angels’ Share”. We accept no liability for any loss of alcohol or volume occurring in this manner.

5.3.

If you have any questions or complaints about your Cask(s) or Spirit, please contact us. Please see Clause 2.2 for how to contact us.

6.1.

The Price for the Cask(s), including Spirit, is as set out in the Order Form. The Price excludes all insurance, storage charges, costs of delivery, other overheads, packing, bottling, loading, carriage and all taxes and duties of any kind.

6.2.

We will invoice you following acceptance of your Order Form. You must pay our invoice in full and cleared funds within the period set out in the invoice prior to ownership of your Cask(s) being transferred to you. We accept payment by debit card, credit card with (3% Surcharge) and bank transfer.

6.3.

If you do not pay sums due to us by the date set out on our invoice, we will be entitled to terminate this Agreement and will be under no obligation to supply you with the Cask.

6.4.

If you think an invoice is wrong, please contact us promptly to let us know.

6.5.

You must pay all amounts due to us under this Agreement in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7.1.

Subject to Clause 6.2 and Clause 7.2, we will aim to ensure that ownership of the Cask is transferred to you at the earliest opportunity. However, because the availability of Casks and the amount of Spirit from a Distillery is subject to change, we offer no warranty or guarantee as to the date upon which the Cask will become available to us and be subsequently be able to be transferred to you.

Ownership and title of the Cask will pass to you once we have issued you with a ‘Fah Mai Holdings Certificate’, which certifies you as being the owner of the Cask, as well as detailing the Cask number(s), capacity (expressed in litres of pure alcohol), strength and Cask type. We will maintain a record of all individual owners, Certificate numbers, and Casks.

7.2.

Ownership of the Cask (and the Spirit within it) may only be transferred to you if you are of legal age for consuming and purchasing alcoholic beverages. We reserve the right to ask for further identification should we deem it necessary.

7.3.

If the transfer of ownership of the Cask to you has not taken place within 30 days from Start Date, we will let you know and give you as much information as possible as to when the transfer of ownership will likely take place.

7.4.

If a suitable Cask is unavailable at the time of transfer, we will contact you to advise of other available cask types and agree with you the type to be used. If we are unable to contact you, having used reasonable endeavours to do so, we will select a suitable alternative and advise you of the same. If you do not agree to the change of Cask or Spirit, we will provide you with a full refund.

7.5.

Replacement or additional copies of ‘Fah Mai Holdings Certificates’ (which evidence ownership of a Cask) can be obtained for an additional charge. We will advise you of the costs for this service when you contact us.

7.6.

To be clear, although you will not have physical possession of the Cask, you will be its owner once we issue you with a “Fah Mai Holdings Certificate”: you, as a bailor, have, through us, bailed the Cask to be held by the relevant warehouse where your Cask is stored subject to the terms of this Agreement. Until risk in the Cask(s) passes to you under Clause 8.5, we shall:

7.6.3.

not, unless otherwise permitted by this Agreement, sell or offer for sale, underlet or allow the creation of any mortgage, charge, lien or other security interest in respect the Cask(s).

8.1.

As provided for under Clause 6.1, insurance for the Initial Term is included in the Price. Such insurance shall be on the same terms and on the same basis as other like products and stock stored in the warehouse where your Cask is stored. We will provide you details of the relevant insurances upon request.

8.2.

If, after the Initial Term, you wish to continue maturing the Spirit then, as provided for under Clause 9.5.1, you will be required to pay to us an annual storage and insurance fee at a rate to be determined by us (acting reasonably) for each additional year of storage (“Annual Fee”). We will notify you of the Annual Fee no less than 1 month prior to the start of the applicable 12-month period. Unless notified otherwise, the Annual Fee will be £50.00 per Cask per year. We will invoice you for the Annual Fee and you shall pay such invoice(s) in accordance with Clause 6.2.

8.3.

If there is successful claim on the insurance held under Clauses 8.1 or 8.2 in relation to your Cask(s), we will use our reasonable endeavours to ensure that the proceeds are paid to you.

8.4.

The Price and Annual Fee will not include replacement Spirit lost due to natural evaporation – see Clause 5.2.

8.5.

Risk in the Cask(s) or any bottled Spirit shall pass to you at the point of collection by you or your nominated representative, or carrier from the relevant bonded distillery or warehouse where the Cask(s) is being held. It is your responsibility to arrange and pay for appropriate insurance for the transportation of the bottles. If you do not pay the Annual Fee, we will no longer be responsible for storing the Cask(s) and risk in the Cask(s) will pass to you immediately.

8.6.

We may agree, in our sole discretion, to delivery the Cask(s) to you, as an alternative to collection under clause 8.5. It is your responsibility to arrange and pay for appropriate insurance for the transportation of the bottles. We will only delivery the Cask(s) to you if you, or your nomination representative for delivery. hold a licence in accordance with the WOWGR. It is your responsibility to make any necessary arrangements for export and payment of relevant duties and taxes in the country of import.

9.1.

This Agreement shall commence on the Start Date and shall continue, unless terminated earlier in accordance with Clauses 8 or 9, until you or we give one month’s written notice to terminate, provided that such notice expires on or after the Initial Term.

9.2.

During the Initial Term, the Cask(s) will remain under our management, and we will be responsible for storage, insurance and our other obligations under this Agreement.

9.3.

Your Cask(s) will be stored under bond at HMRC-approved distilleries or warehouses in Scotland.

9.4.

If you wish to have your Cask(s) moved before the end of the Initial Term, you will be responsible for all costs and expenses of moving the Cask(s), which will be agreed with you prior to removal of the Cask(s) from the relevant distillery or warehouse.

9.5.

At least one month before the end of the Initial Term we will contact you to discuss your options for the Cask(s) (and Spirit). Your options may, depending on the applicable law at that time, include:

e can sell the Cask through our network on your behalf. We charge a commission of 20% of the total profit, being the net sale price of the Cask less the sum of the initial charges paid by you to us, however if you re-invest the initial capital (being the Price) with us by buying, for example, another cask, no commission will be charged.

10.1.

You can end this Agreement with us in certain circumstances. You can do this if:

10.1.3.

following the Initial Term, you decide that you no longer wish us to be responsible for storing the Cask - see Clauses 9.4 and Clauses 9.5.2 to 9.5.4 inclusive. In such circumstances, you have a right to end the Agreement under clause 9.1.

10.2.

If you are ending the Agreement for a reason set out at Clause 10.1.1 or Clause 10.1.2, the Agreement will end immediately and we will refund you the Price in full and you may also be entitled to compensation.

10.3.

If you are a consumer, you have a legal right under the Consumer Contracts Regulations 2013 to change your mind within 14 days and receive a refund.

10.4.

To end this Agreement, please let us know by phone or email:

10.4.1.

Call us on +44 (0) 20 4552 4713 or email us at admin@fahmaiholdings.com. Please provide your name, home address, details of the Order (including Fah Mai Holdings Certificate number) and, where available, your phone number and email address.

11.1.

We may end this Agreement at any time, by writing to you, if:

11.1.3.

you do not, prior to the end of the Initial Term, provide us with instructions for your Cask(s).

11.2.

If we end the Agreement for a reason as set out in Clause 11.1 we will refund any money you have paid in advance for any Cask(s) but we may deduct and we reserve the right to sell the Cask(s) and to hold the proceeds on your behalf after deduction of sale costs and any other costs we may have incurred from warehousing the Cask(s) for a period longer than one year.

12.1.

You are entitled to bottle the Spirit (subject always to the Regulations) at any point. Please note, however, that single malt Scotch whisky must be bottled in Scotland.

12.2.

Approval of any form of label shall be at our absolute discretion. If you choose to use a form of label other than the Distillery’s own label, you accept responsibility for ensuring that such label complies with the Regulations and does not in any way infringe any existing trade mark, copyright or other intellectual property rights of the Distillery or any other third party and you will indemnify us against all claims, losses, damages and expenses which may be incurred by or levelled against us in connection with any actual or purported breach of the Regulations or infringement of any trade marks, copyright or other intellectual property rights resulting from the use of such label.

12.3.

Bottling must be carried out in Scotland at an HMRC approved bottling location. It will normally be carried out without chill-filtration or the addition of any colour. You will have the choice of bottling at (a) cask strength or (b) 46% abv.

12.4.

We require you provide us with at least minimum of 3 months’ written notice in advance of bottling as we need sufficient time to schedule it.

12.5.

We will advise you of the charges for bottling and delivery at the end of the maturation period and prior to bottling. The Spirit must be bottled in its entirety. We cannot guarantee the number of bottles during the bottling process as will vary from cask to cask. You must pay all charges associated with bottling and delivery in advance of delivery (or collection, where this is agreed).

12.6.

Labelling and packaging details will be agreed in advance of bottling by us and you must comply with the Regulations and any other relevant legislation at the time.

12.7.

Under the Regulations, only bottled Spirit, labelled for retail sale, can be exported from Scotland. If the bottled Spirit is exported under bond, UK duty and VAT can be suspended (but not avoided) subject to the exporter being registered for both duty and VAT, and being registered as a bona fide exporter. Duty and VAT (and all relevant local taxes) will be payable in the country of final destination at the rates prevailing in that country at that time. It is up to you to find a suitable importer in the destination country and to arrange the export, but we may be able to assist with this. Please note it is your responsibility to be aware of all regulations prevailing in the country of residence regarding the importation of alcohol plus any issues regarding labelling.

13.1.

Unless you are planning to export your products immediately after bottling (see Clause 12.7), then you will be liable for UK duty and VAT at the prevailing rate at the time of bottling. You must settle all duty and VAT amounts, and arrange for the shipping of your bottles within one month of bottling completion.

13.2.

As provided for under Clause 12.7, where you choose to ship your bottles to a destination outside the UK, it shall be your sole responsibility to make all necessary arrangements for the export from Scotland and import into the country in question, to make payment of all applicable duties and levies and to ensure compliance with all rules in respect of labelling.

13.3.

You will indemnify us against all claims, losses, damages and expenses which may be incurred by or levelled against us in connection with any failure or purported failure by you to comply with the provisions of Clause 13.1 to 13.2 inclusive in respect of your Cask.

13.4.

For UK tax payers, UK Capital Gains Tax is not applicable on the purchase of bulk Spirit as whisky is regarded as a “tangible”, “movable” and “wasting” asset. Whisky purchased in cask for personal use, as gifts for family, friends etc. should therefore be exempt from Capital Gains Tax. We do not, however, make any representations or guarantees in respect of exemption or otherwise from Capital Gains or any other form of personal tax and you should consult your own independent financial advisors, tax advisors or solicitors in connection with such matters.

13.5.

UK duty and VAT may be payable after bottling, depending upon the final destination of the bottled product. Duty is the charge made by HMRC based on the percentage of pure alcohol. The current rate in the UK is £28.74 per litre of pure alcohol (valid at 26/03/21). This equates to £111.05 per case of 12 bottles (70cl) at 46% alc. vol.

13.6.

UK VAT is currently 20%. This is charged on the purchase price of the whisky as adjusted for relevant storage, insurance, bottling and duty costs payable by you. Both duty and VAT are due after the Cask has been bottled and the finished goods are removed from the bonded warehouse. Taxes are subject to change by the UK government. Various different rates of duty apply throughout the EU and the rest of the world. It is your responsibility to pay any applicable taxes.

14.1.

Subject to Clause 14.2, you are entitled to one 50 ml sample from your Cask during the Initial Term, and one further 50ml sample from your Cask after that first year if the Cask remains in our control.

14.2.

Samples are conditional on you having paid all charges payable by you under this Agreement and are subject to an additional fee which is required to cover alcohol duty, administration and delivery. We will advise you of this fee in advance. Please note, some countries apply restrictions on the importation of alcohol so we may have to decline a request for a sample.

14.3.

It is not possible to sample casks (whether full or partial) prior to purchase.

15.1.

You acknowledge and agree that:

15.1.3.

nothing in this Agreement will grant you any rights in or licence to the Brand or any of our intellectual property rights or the intellectual property rights of the Distillery.

15.2.

It is your responsibility to ensure that we have a current, valid contact address for you. You must notify us immediately of any change to your address or contact details. If we are unable to contact you (having used reasonable endeavours to do so) at any time after the Initial Term, we reserve the right to sell the Cask and to hold the proceeds on your behalf after deduction of sale costs and any other costs which we may incur from warehousing or otherwise storing the Cask.

16.1.

If we fail to comply with this Agreement, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.

16.2.

We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Casks including the right to receive products which are: as described and match information we provided to you and any sample or model seen or examined by you; of satisfactory quality; fit for any particular purpose made known to us; supplied with reasonable skill and care; and for any defective products under the Consumer Protection Act 1987.

17.1.

Nothing in these terms shall limit or exclude our liability for:

17.1.4.

any matter in respect of which it would be unlawful for us to exclude or restrict liability.

17.2.

We are not liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: any loss of profit, sales, loss of business, business interruption, or loss of business opportunity.

17.3.

Our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to 100% of the Price paid by you under this Agreement.

17.4.

We do not give any representation, warranties or undertakings in relation to the provision of the Cask(s) or Spirit. Any representation, condition or warranty which might be implied or incorporated into these terms by statute, common law or otherwise is excluded to the fullest extent permitted by law.

We may change the Cask(s) and Spirit to reflect changes in relevant laws and regulatory requirements such as laws relating to the production of alcohol or weights and measures legislation.

19.1.

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by an Event Outside Our Control.

19.2.

An “Event Outside Our Control” means: any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, pandemic, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

19.3.

If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement:

19.3.2.

our obligations under the contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.

20.1.

We may transfer this Agreement to someone else. We may transfer our rights and obligations under this Agreement to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under this Agreement.

20.2.

You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under this Agreement to another person if we agree to this in writing. You cannot create a charge or other encumbrance over the Cask without our prior written Agreement.

20.3.

Nobody else has any rights under this Agreement. This Agreement is between you and us. No other person shall have any rights to enforce any of its terms.

20.4.

How we will use your personal data. We will only use your personal information as set out in our privacy policy at https://www.fahmaiholdings.com/privacy-policy https://www.whiskybull.com/cookie-policy and https://platinumcask.com/privacy-policy

20.5.

If a court finds part of this Agreement illegal, the rest will continue in force. Each Clause of this Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Clauses will remain in full force and effect.

20.6.

Amendments in writing. No amendment of this Agreement will be effective unless it is in writing and signed by us.

20.7.

Even if we delay in enforcing this Agreement, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under this Agreement, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later date.

20.8.

Which laws apply to this Agreement and where you may bring legal proceedings. These terms are governed by English law and you can bring legal proceedings in respect of this Agreement in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.