Terms and Conditions
Definitions
In these Terms and Conditions, the following words and phrases shall have the following meanings, unless the context otherwise requires:
“Quotation” means the formal offer of the Product by the Seller to the Buyer detailing the total cost and description of the Product.
“Product” means any item available for purchase from Spirited, including casks of spirits, whisky and bottles, as detailed in the Sales Order.
“Sales Order” means the formal confirmation to purchase the Product.
“Buyer” means a person, company, or other legal entity who buys or contracts to buy a Product, and includes their permitted assignees, successors, and authorised representatives.
“Seller” means Spirited Limited (or Spirited) who sells or contracts to sell a Product to a Buyer.
“Regauge” means the process of measuring the contents of a cask.
"Regauge Report" means a record detailing the characteristics of a Product (Cask) following a Regauge procedure. This record includes, but is not limited to, the following information: cask identifiers, litres of alcohol, volume, and alcohol by volume (ABV).
“OLA” means Original Litres of Alcohol as measured when the cask was originally filled.
“RLA” means Regauged Litres of Alcohol as measured by the most recent regauge.
“AYS” means Age of Youngest Spirit, i.e., the cask’s birthday.
“Bottles”, unless explicitly otherwise defined, means 700 millilitre portions of whisky from a cask.
“Sampling” or “Sample” means to draw or to have drawn a small portion of liquid from the cask for inspection.
“The Angel’s Share” means the gradual evaporation of whisky from the cask as the whisky matures. This is estimated at approximately two (2) per cent of the cask’s contents every year during maturation.
“ABV” means the Alcohol by Volume, which refers to the metric used to gauge the percentage (%) of pure alcohol in an alcoholic beverage.
1. ORDERING PRODUCT
1.1. These are the terms and conditions of sale for Spirited Limited, a company incorporated in Hong Kong (registration number 76116273) with registered office at 102 - 104 Des Voeux Road, the Voeux, Central, Hong Kong (“Seller”). These conditions, together with all Quotations and Sales Order confirmations, form the Agreement between the Seller and the Buyer.
1.2. The Buyer places a Sales Order for the Product from the Seller by accepting a Quotation. Each Sales Order will constitute a separate offer by the Buyer to purchase the Product specified in the Quotation. A Sales Order will not be binding on the Seller until the Seller acknowledges acceptance or commences the execution of the Sales Order. The Seller may, in its discretion, accept or reject in whole or part any Sales Order.
1.3. Payment by the Buyer for the Product(s) detailed in the Quotation constitutes acceptance of these Terms and Conditions in full.
1.4. If the Seller is unable to supply the Product due to unavailability, the Seller may terminate this Agreement and will refund any amounts paid to the Buyer (see Section 12 for full refund details). The Seller shall not be liable for any direct or indirect losses, damages, or expenses incurred by the Buyer as a result of such termination.
1.5. The Buyer must be legally able to enter into binding contracts to purchase any Product from the Seller.
2. PRICING AND PAYMENT
2.1. Payment for the Product is due seven (7) days after the Buyer receives the Seller's Sales Order confirmation.
2.1.1. If payment is not made in accordance with this clause, the Seller, at its sole discretion, may terminate this Agreement. In addition to termination, the Seller may charge interest on the overdue amount at the statutory interest rate applicable in Hong Kong from the due date until the date of actual payment, and the Buyer shall be liable for all reasonable expenses (including legal fees) incurred by the Seller in recovering the outstanding amount.
2.2. Unless agreed upon, the Buyer shall be solely liable for payment of all import duties and customs.
3. PRODUCT
3.1. The Product figures stipulated within the Sales Order are based on the Seller’s most recent calculations as of the date of the latest Regauge. Maturing whisky within a cask for any given time is a natural process, and the ultimate output may differ from these calculations. As such, the Buyer acknowledges and agrees to the following in relation to their Order placed under the Sales Order:
3.1.1. The final bottle yield is an estimate only, based on the latest Regauge. Regauge accuracy varies depending on the method used (e.g., "dip" or "emptying casks"), and the actual yield may differ from the Sales Order estimate.
3.1.2. “The Angel's Share," a natural evaporation process, reduces the cask's contents by approximately 2% annually, further decreasing the estimated quantity over time.
3.1.3. The ABV of the Product is an estimate based on the latest Regauge or Sampling.
3.1.4. The actual number of bottles the Buyer receives for the purchase price may differ from the Sales Order estimate due to factors such as “The Angel’s Share.” In such cases, the Buyer is entitled to the remedies described in Section 13.
3.1.5. Illustrations, photographs or descriptions, whether in catalogues, brochures, price lists or other documents issued by the Seller, are intended as a guide only, and the contents shall not be binding on the Seller.
4. CERTIFICATE AND STORAGE
4.1. The Seller agrees to issue and deliver a payment receipt to the Buyer upon receipt of funds from the Buyer. The payment receipt, the Sales Order and this Agreement together form the confirmation of ownership to the Buyer.
4.1.1. A delivery order shall be provided to the Buyer (or to such other person or entity as the Buyer may direct) once available and shall confirm the bonded warehouse in which the cask will be stored and the cask details as recognised by the warehouse.
4.1.2. Should the Seller fail to transfer ownership to the Buyer within ninety (90) days of payment as per Section 2, the Buyer shall receive a full refund after ninety (90) days.
4.2. The purchase price includes storage for the first three (3) years, unless otherwise agreed. After three years, or upon transfer to the Buyer's warehouse account (whichever is sooner), storage fees will be subject to the Bonded Storage Warehouse's price list and paid by the Buyer.
4.3. Unless otherwise agreed upon, insurance shall not be covered by the Seller, however, options for insurance for the Product are available at an additional cost to the Buyer. The Seller shall not be liable for any loss or damage to the Product unless the Buyer has purchased insurance coverage for the Product.
5. TERMINATION AND CANCELLATION
5.1. The Seller may, by written notice to the Buyer, immediately terminate this Agreement if the Buyer fails to make payment of any amount in accordance with this Agreement or otherwise breaches this Agreement.
5.2. In the event of such termination, the Buyer shall be liable to pay to the Seller for all costs, expenses, and losses incurred by the Seller up until the date of termination, including but not limited to storage fees, regauge costs, and any diminution in value of the Product. Such amount shall be a debt immediately due and owing. Upon receipt of the full payment of such Sales Order, the Seller shall fulfil the Order by providing the Product in accordance with this Agreement as if it had not been terminated.
5.3. If the report on inspection for the conditions of the cask as stipulated in Clause 13.2 shows leakage of the liquid or contents from the cask specified in the Sales Order, the Buyer shall be entitled to terminate this Agreement, and the Seller shall refund all amounts paid by the Buyer for the cask within five (5) business days from the date of termination.
6. ANTI-MONEY LAUNDERING
6.1. The Buyer will provide such documentary evidence as the Supplier may reasonably request in order to comply with applicable Hong Kong Anti-Money Laundering (AML) and Know Your Client (KYC) legislation. The Seller shall be entitled to terminate an accepted Sales Order for a Product where the Buyer fails to provide such evidence. Where, prior to such termination, the Seller had to pay a deposit to the original seller of that Product in order to ensure its availability for the Buyer, the Seller does not warrant that any such deposit will be refundable in the event of such termination.
7. DISCLAIMER
7.1. Subject to the terms and conditions in this Agreement, the Seller provides the Product on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Seller specifically disclaims any implied warranty of merchantability or fitness for a particular purpose.
7.2. Without limiting the other terms of this clause, the Buyer acknowledges and agrees that:
7.2.1. Unless expressly written, any advice or recommendation given by the Seller regarding the storage, application or use of the Product is followed or acted upon entirely at the Buyer’s own risk.
7.2.2. The Seller reserves the right to make any changes in the specifications of the Product which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Product is to be supplied to the Seller’s specifications, which do not materially affect their quality or performance; and
7.2.3. The Seller does not provide personal financial advice, including legal, tax, and investment advice. The Buyer should instead seek counsel with their own legal and financial advisors and tax experts.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1. The Seller excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Product that are not expressly set out in this Agreement to the maximum extent permitted by law. The Buyer relies on the Product at their own risk.
8.2. Subject to the terms of this clause, the Seller’s maximum aggregate liability to the Buyer for any loss or damage or injury arising out of or in connection with the supply of goods or services under this Agreement is limited to the lesser of (a) the then current market value of the relevant Product (as reasonably determined by the Seller) or (b) the actual purchase price paid by the Buyer for the Product to which the loss, damage or injury relates.
8.3. Without limitation to the other terms of this Agreement, the Seller excludes any liability to the Buyer, whether in contract, tort (including negligence) or otherwise, for any special, indirect, incidental, or consequential loss or damage, including but not limited to loss of profit, loss of business, loss of opportunity, or loss of goodwill, arising under or in connection with this Agreement.
9. DELIVERY OF SAMPLES AND BOTTLES
9.1. If delivery of Samples or Bottles is requested by the Buyer, the delivery method and instructions will be as set out in a separate and specific Sales Order or as otherwise agreed between the parties.
9.2. The Buyer shall pay all costs associated with the delivery and insurance (during transit) of the Product as specified in the Sales Order. Port surcharges and other incidental charges are not included in the freight rate and must be paid by the Buyer within five (5) business days upon request by the Seller.
9.3. While the Seller aims for timely delivery, delivery dates are not guaranteed. If the Product is not delivered within ninety (90) days of the Buyer's payment, the Buyer will receive a full refund upon expiry of that period.
10. GENERAL
10.1. Intellectual Property Rights
10.1.1. Certain products purchased and marketing materials may be protected by copyright or other intellectual property rights, including our rights. The Buyer agrees that it will not use the Product or such marketing materials in a way that infringes those rights.
10.2. Ownership
10.2.1. The parties agree that the Seller retains full title to the Product and title will not at any time pass to the Buyer until the purchase price for the Product and all other amounts owing in respect of the Product (if any) are paid to the Seller.
10.3. Variation
10.3.1. An amendment or variation of any term of this Agreement must be in writing and signed by each party.
10.4. Entire Agreement
10.4.1. This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, undertakings, negotiations and discussions in respect of its subject matter.
10.5. Governing Law and Jurisdiction
10.5.1. This Agreement is governed by the law in force in Hong Kong.
10.5.2. The parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Hong Kong for the purpose of hearing and determining any dispute arising out of or in connection with this Agreement or its formation, existence, validity, legality, enforceability, interpretation, termination and effects.
10.6. Executors
10.6.1. References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
10.7. Force Majeure
10.7.1. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure is caused by any event beyond its reasonable control, including but not limited to acts of God, war, terrorism, fire, flood, strike, lockout, or other industrial dispute, failure of a utility service or transport network, act or omission of government or regulatory authorities, or any other cause beyond its reasonable control. If such an event occurs, the affected party shall be excused from performance for the duration of the event, provided that it uses reasonable efforts to mitigate the effects of the event.
10.8. Notices
10.8.1. Any notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered personally, sent by certified mail, or sent by email to the address of the relevant party set out in the Sales Order or such other address as may be notified by that party to the other party in writing from time to time. Any notice shall be deemed to have been received (a) if delivered personally, at the time of delivery; (b) if sent by certified mail, five (5) business days after the date of posting; or (c) if sent by email, at the time of transmission, provided that a delivery receipt is generated.
11. SELLER’S DISCLOSURE
11.1. Spirited Limited is committed to ensuring that each sale complies with internal disclosure policies in Sales Order to protect the interests of the Buyer and the integrity of any trade or transaction contemplated in this Agreement.
12. REFUND OR EXCHANGE
12.1. The Seller endeavours to ensure the availability and accuracy of information relating to the Product sold as per any Sales Order.
12.2. If a Product becomes unavailable after the payment for the Product has already been issued by the Buyer, the Seller shall offer a full refund of any payment made in the original transaction currency to the Buyer.
12.3. Refunds shall be issued within five (5) business days of having been informed of the unavailability of the Product or the funds having landed in the Seller’s account, whichever is later.
12.4. As an alternative to any refund, the Seller may propose an exchange of the Product ordered and the Buyer may, at its sole discretion, accept or refuse the proposed exchange.
13. CASK CONTENTS, REGAUGES, AND CONDITIONS OF SALE
13.1. The Seller endeavours to ensure the closest approximation possible for any purchase.
13.2. The Seller shall arrange a Regauge on the following conditions. For the purposes of this Section, "upon delivery" means the date on which the Product is transferred into the Seller's account, whether through a physical transfer or an electronic transfer if the Product is already physically located in the warehouse:
13.2.1. Casks under eight (8) years old are sold ‘as is’, meaning either as their Original Litres of Alcohol (“OLA”) or the Regauged Litres of Alcohol (“RLA”), whichever is available.
13.2.2. Casks between eight (8) and fifteen (15) years old will either have been regauged within the past three (3) years or a Regauge “upon delivery” will be offered free of charge by the Seller upon purchase.
13.2.3. Casks between fifteen (15) and twenty (20) years old will either have been regauged within the past one (1) year or a Regauge “upon delivery” will be offered free of charge by the Seller upon purchase.
13.2.4. Casks over twenty (20) years old will have been regauged within six (6) months, or a Regauge “upon delivery” will be offered free of charge by the Seller upon Purchase.
13.3. The Seller shall provide the Buyer with a Regauge report following the inspection of the Product, including details on the conditions of the cask (if stated) by the Regauge service provider. This report shall be provided within seven (7) days after the Seller receives the report(s).
13.4. Cask values are based on estimated contents, and the actual bottle yield may vary. If a Regauge conducted “upon delivery” shows the number of bottles is fewer than stated in the Sales Order, and the updated RLA is more than two (2) per cent lower than the original quoted RLA, the Seller may offer a partial refund and amend the Sales Order price accordingly.
13.4.1. The partial refund will be calculated on a pro-rata basis, equivalent to the value of one or more 700 millilitre bottles, based on the difference between the Sales Order estimate and the latest Regauge.
13.4.2. To claim a partial refund, the Buyer must provide written notice to the Seller within ten (10) days of the latest Regauge date. The Seller will process the partial refund within thirty (30) days of receiving such notice. The partial refund shall be the sole and exclusive remedy available to the Buyer for any discrepancy in the estimated bottle yield, and the Seller shall have no further liability in respect thereof.