Terms and Conditions of Supply

Own Label Company Scotland Limited

1. Interpretation

1.1. In these Conditions the following definitions apply:

“Applicable Laws”; means all applicable laws, statutes, regulations, directives, safety standards and industry best practice and guidance applicable to the Goods, including product labelling requirements;

“Business Day” means a day other than Saturday, Sunday or public holiday when banks generally are open for non-automated business in Edinburgh, Scotland;

“Buyer” means the person(s) or firm who purchases the Goods from the Seller;

“Conditions” means the terms and conditions set out in this document;

“Confidential Information” means any commercial, financial or technical information, information relating to products, plans, recipes, know-how or trade secrets which is obviously confidential, has been identified as such, which would be considered by a reasonable person as confidential or which is developed by a party in performing its obligations under, or otherwise pursuant to, the Contract;

“Contract” means the agreement between the Seller and the Buyer for the sale and purchase of Goods, incorporating these Conditions, the Specification and the Order Confirmation;

“Delivery Location” means the address for delivery of the Goods as set out in the Order Confirmation;

“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, telecommunications service or material required for performance of the Contract, except any party’s failure to pay shall not be an event of Force Majeure in any event;

“Goods” means the goods set out in the Order Confirmation and to be supplied by the Seller to the Buyer;

“Intellectual Property Rights” means copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;

“Order” means the Buyer’s order for the Goods from the Seller, as communicated by the Buyer to the Seller whether via email, telephone, order form or otherwise;

“Order Confirmation” means the document (which may be an email) provided to the Buyer by the Seller confirming the Seller’s acceptance of the Order;

“Seller” means Own Label Company Scotland Ltd a limited company registered in Scotland with company registration number SC416673 whose registered office is at Unit 2a Newbridge Industrial Estate, Newbridge, Midlothian, EH28 8PJ;

“Specification” means the specification of the Goods provided by the Buyer and set out in the Order;

“Value Added Tax” or “VAT” means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale or supply of the Goods.
1.2. Unless the context otherwise requires:
1.2.1. each gender includes the others;
1.2.2. the singular includes the plural and vice versa;
1.2.3. references to persons include individuals, unincorporated bodies, government
entities, companies and corporations;
1.2.4. clause headings do not affect their interpretation;
1.2.5. general words are not limited by example;
1.2.6. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.7. references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2. Application of these terms and conditions

2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of
dealing, or are referenced in the Order.
2.2. No variation of: (i) these Conditions; (ii) an Order; (iii) a quotation from the Seller; or (iv)
the Contract; will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Seller.
2.3. Each Order by the Buyer to the Seller will be deemed to be an offer to purchase Goods and subject to these Conditions.
2.4. The Seller reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
2.5. Any quotation by the Seller for the provision of Goods will be deemed to be:
2.5.1. an invitation to treat (and shall not be an offer) by the Seller to supply Goods on and subject to these Conditions; and
2.5.2. will be valid for 14 days only from the date of issue.
2.6. The Order shall only be deemed to be accepted when the Seller issues the Order Confirmation, at which point the Contract is formed.
2.7. Any samples, descriptive matter, advertising or promotional materials produced by the Seller are for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.8. The Seller reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements.

3. Price

3.1. The price for the Goods will be as set out in the Order Confirmation.
3.2. Unless stated otherwise, the price:
3.2.1. does not include the costs and charges of packaging and transport (including insurance) of the Goods which shall be borne by the Buyer unless otherwise agreed by the Seller. Where the Buyer is charged for packaging and transport such charge shall be noted on the Seller’s invoice; and
3.2.2. does not include Value Added Tax which will be charged in addition at the then applicable rate.
3.3. The Seller may, by giving notice to the Buyer at any time up to ten (10) Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
3.3.1. any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour or materials);
3.3.2. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
3.3.3. any delay caused by a breach of the Contract by the Buyer or any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
3.4. If the Buyer does not agree with any increase in the price notified in accordance with clause
3.3 then the Buyer may terminate the Contract in respect of any undelivered Goods by giving the Seller five (5) days’ notice, such notice to expire no earlier than the date on which the price increase was due to take effect provided always that the Buyer shall accept delivery (and shall, where applicable pay the increased price for) any Goods referred to in clause 3.3 in respect of which the Seller had (at or prior to the time of receiving such notice) entered into an irrevocable commitment to purchase or subcontract from any third party.

4. Payment

4.1. The Seller is entitled to invoice the Buyer for the Goods on issuing the Order Confirmation. The Seller is also entitled to withhold dispatch of the Goods until payment is received.
4.2. The Buyer will pay all invoices:
4.2.1. in full without deduction or set-off other than as required by law, in cleared funds within twenty one (21) days of the date of each invoice, and
4.2.2. to the Seller’s nominated bank account as notified to the Buyer.
4.3. Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
4.3.1. the Seller may, without limiting its other rights, charge interest on such sums at three percent (3%) a year above the base rate of the Royal Bank of Scotland from time to time in force; and
4.3.2. interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.4. VAT will be charged by the Seller and paid by the Buyer at the then applicable rate.

5. Credit limit

5.1. Where the Seller has granted the Buyer a credit facility, amounts invoiced and accrued under that credit facility shall be payable within twenty one (21) days of their date of accrual unless specified otherwise. The Buyer acknowledges that any credit facility will have a defined limit and any invoiced amounts causing the amount owed to the Seller to fall over that limit shall be immediately due and payable unless specified otherwise by the Seller.
5.2. The Seller may withhold all further deliveries of Goods to the Buyer if the Buyer exceeds its credit limit.

6. Delivery

6.1. The Goods will be:
6.1.1. delivered by or for the Seller to the Delivery Location on the date or dates specified in the Order Confirmation; or
6.1.2. made available for collection by the Buyer at the Seller’s, or its carrier’s as the case may be, premises set out in the Order Confirmation. The Buyer will collect the Goods within the period specified in the Order Confirmation.
6.2. The Goods will be deemed delivered:
6.2.1. if delivered by or for the Seller under clause 6.1.1, on completion of unloading of the Goods at the Delivery Location;
6.2.2. if collected by the Buyer under clause 6.1.2, on the Seller (or its carrier) making the Goods available for collection at the premises specified in the Order Confirmation.
6.3. The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Buyer to cancel any other instalment.
6.4. If the Goods contain alcohol the Goods cannot be purchased by or delivered to any person who is below legal drinking age in the country of purchase or delivery. The Seller or its nominated third party carrier may require identification proving that the person who receives or collects the Goods is of legal drinking age, and refuse to deliver the Goods if such identification is not presented.
6.5. The Buyer shall not be entitled to reject the Goods if the Seller delivers up to and including five percent (5%) less than the quantity of Goods ordered, but a pro rata adjustment shall
be made to the invoice on receipt of notice from the Buyer that the wrong quantity of Goods was delivered.
6.6. Delivery of the Goods, or part thereof, will be accompanied by a delivery note stating:
6.6.1. the date of the Order;
6.6.2. the relevant Buyer and Seller details;
6.6.3. the product numbers and type and quantity of Goods in the consignment;
6.6.4. any special handling and other instructions; and
6.6.5. whether any packaging material is to be returned (in which case the Buyer will, at the Seller’s option, return them to the Seller or make them available for collection by the Seller at a time specified by the Seller, and in either case at the Seller’s expense).
6.7. The Seller will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.
6.8. The Seller will not be liable for any delay in or failure of delivery caused by:
6.8.1. the person who attempts to collect or receive delivery of the Goods on behalf of the Buyer failing to prove to the Buyer’s (or the Buyer’s nominated third party carrier’s) reasonable satisfaction that such person is of legal drinking age (where the Goods contain alcohol);
6.8.2. the Buyer’s failure to: (i) make the Delivery Location available; (ii) prepare the Delivery Location as required; or (iii) provide the Seller with adequate instructions; for delivery;
6.8.3. the Buyer’s failure to collect the Goods from the premises set out in the Order Confirmation; or
6.8.4. an event of Force Majeure.
6.9. If the Buyer fails to accept delivery of or collect the Goods as provided in clause 6.1.1 or
6.1.2 on the date or within the period set out in the Order Confirmation:
6.9.1. delivery of the Goods will be deemed to have occurred at 0900 on the first Business Day following such date; and
6.9.2. the Seller will store and insure the Goods pending the Buyer taking possession of the Goods, and the Buyer will pay all costs and expenses (including storage and insurance) incurred by the Seller in doing so.
6.10. If five (5) Business Days after the day on which the Seller or its carrier first attempted delivery of the Goods, the Buyer has not taken possession of them, the Seller may resell or otherwise dispose of the Goods. The Seller will:
6.10.1. deduct storage and insurance charges at the Seller’s then-applicable rates;
6.10.2. deduct reasonable costs of resale; and
6.10.3. account to the Buyer for any excess of the resale price over, or invoice the Buyer for any shortfall of the resale price below, the price paid by the Buyer for the Goods.

7. Title and risk

7.1. Risk in the Goods will pass to the Buyer on completion of delivery.
7.2. Title to the Goods will pass to the Buyer once the Seller has received payment in full for the Goods.
7.3. Until title to the Goods has passed to the Buyer, the Buyer will:
7.3.1. hold the Goods in trust for the Seller;
7.3.2. store the Goods separately from all other material in the Buyer’s possession;
7.3.3. take all good care of the Goods and keep them in good condition;
7.3.4. insure the Goods: (i) with a reputable insurer; (ii) from the date of delivery; (iii) against all risks; (iv) for an amount at least equal to the price; and (v) noting the Seller’s interest on the policy;
7.3.5. ensure that the Goods are clearly identified as belonging to the Seller;
7.3.6. not remove or alter any mark on or packaging of the Goods;
7.3.7. inform the Seller as soon as possible if it becomes subject to any of the events set out in clause 14.1; and
7.3.8. provide the Seller such information concerning the Goods as the Seller may request from time to time.
7.4. If, at any time before title to the Goods has passed to the Buyer, the Buyer informs the Seller, or the Seller reasonably believes, that the Buyer has or is likely to become subject to any of the events specified in clause 14.1, the Seller may:
7.4.1. require the Buyer at the Buyer’s expense to re-deliver the Goods to the Seller; and
7.4.2. if the Buyer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

8. Warranty

8.1. The Seller warrants that on delivery the Goods will:
8.1.1. conform in all material respects to the Specification;
8.1.2. be free from material defects; and
8.1.3. be of satisfactory quality.
In the case of whisky where Goods are sourced over a period of time while the whisky will be of the same general description it may be sourced from different casks and/or, bottlings and if no distillery is specified may also be sourced from different distilleries.
8.2. The Seller will, at its option, replace or refund the price of defective Goods, provided that and subject to clause 8.4:
8.2.1. the Buyer gives notice in writing to the Seller: (a) within two (2) Business Days of delivery where a defect is ascertainable on inspection; or (b) within five (5) Business Days of the date on which it should reasonably have become aware of the defect if the defect was not ascertainable on inspection;
8.2.2. the Buyer gives the Seller (or its appointed third party) a reasonable opportunity to examine the defective Goods; and
8.2.3. the Buyer returns the defective Goods to the Seller at the Seller’s expense.
8.3. These Conditions will apply to any Goods replaced under clause 8.2.
8.4. The Seller will not be liable for any failure of the Goods to comply with clause 8.1:
8.4.1. if the defect arises because the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser of the Goods, fails to follow the Seller’s oral or written instructions as to the storage or maintenance of the Goods or (if there are none) good trade practice regarding the same, or fails to adhere to any term of the Contract;
8.4.2. if the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser, alters or tampers with the Goods without the written consent of the Seller;
8.4.3. where the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser uses or consumes any of the Goods after notifying the Seller that they do not comply with clause 8.1.
8.5. Except as set out in this clause 8 the Seller:
8.5.1. gives no warranty in relation to the Goods; and
8.5.2. will be under no liability for their failure to comply with the warranty in clause 8.1. In particular, the conditions implied by ss 13–15 of the Sale of Goods Act 1979 and to the extent permitted by law, by the Consumer Rights Act 2015, are expressly excluded.

9. Obligations of the Buyer

9.1. The Buyer will:
9.1.1. place all Orders on these Conditions and ensure that the contents of any Order are complete and accurate;
9.1.2. ensure that the Specification which it provides is complete and accurate and contains all information the Seller may require;
9.1.3. ensure that any Specification provided by the Buyer will comply with all Applicable Laws and that Goods made to such Specification will also therefore comply with all Applicable Laws;
9.1.4. co-operate fully with the Seller in relation to delivery or collection of the Goods.
9.2. The Buyer warrants that, where the Goods contain alcohol, that the Buyer is of legal drinking age in the United Kingdom or the place in which the Goods will be delivered.

10. Liability

10.1. The Seller does not exclude its liability:
10.1.1. for death or personal injury caused by its negligence; or
10.1.2. for breach of the terms implied by s 12 of the Sale of Goods Act 1979; or
10.1.3. for defective products under the Consumer Protection Act 1987; or
10.1.4. for fraud or fraudulent misrepresentation; or
10.1.5. for any other liability which cannot be lawfully excluded or limited.
10.2. Subject to clause 10.1:
10.2.1. the Seller shall under no circumstances whatsoever be liable to the Buyer whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business revenue or any indirect, secondary or consequential loss, damage, expense or liability arising under or in connection with the Contract; and
10.2.2. the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid under the Contract.
10.3. To the extent that the Goods (or part or parts of the Goods) are to be manufactured in accordance with a Specification supplied by the Buyer, the Seller shall not be liable for failure of the Goods to comply with any Applicable Law as a result of the Seller making the Goods (or part or parts of the Goods) to the Specification.

11. Indemnity

11.1. To the extent that the Goods (or part or parts of the Goods) are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for:
11.1.1. actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the Specification; and/or
11.1.2. failure of the Goods to comply with Applicable Laws. This clause 11 shall survive termination of the Contract.

12. Confidentiality

12.1. Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:
12.1.1. any information which was in the public domain at the date of the Contract;
12.1.2. any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
12.1.3. any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
12.2. This clause 12 will remain in force for a period of five (5) years from the date of the Contract.

13. Force Majeure

13.1. A party will not be liable if delayed in or prevented from performing its obligations due to an event of Force Majeure, provided that it:
13.1.1. promptly notifies the other of the event of Force Majeure and its expected duration; and
13.1.2. uses reasonable endeavours to minimise the effects of that event.
13.2. If, due to an event of Force Majeure, a party:
13.2.1. is or will be unable to perform a material obligation; or
13.2.2. is delayed in or prevented from performing its obligations for a continuous period exceeding thirty (30) days; then the other party may terminate the Contract on immediate written notice.

14. Termination

14.1. The Contract may be terminated (or delivery of the Goods suspended) immediately upon written notice by the Seller if:
14.1.1. the Buyer commits a material breach of the Contract which is irremediable or fails to remedy a breach which is capable of remedy within ten (10) Business Days of receiving a notice specifying the breach;
14.1.2. the Buyer is unable to pay its debts as they fall due or is otherwise bankrupt or insolvent; or has a receiver (or its overseas equivalent) appointed to manage its business or assets; or is the subject of any steps to wind it up for any reason or has a substantial proportion of its assets seized or expropriated; or the Buyer takes or suffers any action similar to any of the foregoing in any jurisdiction;
14.1.3. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business; or
14.1.4. the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2. In addition to its rights under clause 14.1 the Seller may terminate the Contract at any time immediately on written notice to the Buyer if the Buyer has failed to pay any amount due under the Contract within three (3) Business Days of the due date.
14.3. On termination of the Contract for any reason:
14.3.1. the Buyer will within five (5) Business Days pay all invoices of the Seller then outstanding and not disputed in good faith;
14.3.2. the Seller will, within ten (10) Business Days, invoice the Buyer for all Goods delivered or provided but not yet invoiced and the Buyer will pay such invoice within a further five (5) Business Days;
14.3.3. the accrued rights and liabilities of the parties will not be affected; and
14.3.4. any clauses which expressly or by implication are to survive termination will do so.
14.4 If the Buyer.ceases to place further orders and the Seller has purchased labels to meet the Buyer’s expected demand, the Seller shall be entitled to recover the cost of such additional labels from the Buyer.

15. General

15.1. Time
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions, the Order Confirmation or otherwise in the Contract.
15.2. No set-off All payments by the Buyer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless it is compelled by law to deduct or withhold any such amounts, in which case it will pay to the Seller such additional amount as will ensure that the Seller is paid the full amount it would have received but for such deduction or withholding.
15.3. Relationship The parties are independent businesses and not principal and agent, partners, or employer and employee.
15.4. Severability If any part of the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be, to the extent required, deleted from the Contract and the remaining provisions of the Contract will otherwise remain in full force. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.5. Notices Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order Confirmation. They may be given, and will be deemed received:
15.5.1. by recorded first-class post: two Business Days after posting;
15.5.2. by international courier: five Business Days after posting;
15.5.3. by email: on the first Business Day after sending provided that no notification of delivery failure is received by the sender.
15.6. Waiver No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
15.7. Rights of Third Parties A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8. Priority In the event of conflict, the terms of these Conditions prevail over those of the Order Confirmation.
15.9. Entire Agreement The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply. The Buyer acknowledges that it has not relied on any
statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
15.10. Succession The Contract will bind and benefit each party’s successors and personal representatives.
15.11. Assignation The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
15.12. Governing Law & Jurisdiction
15.12.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Scotland.
15.12.2. The parties irrevocably agree that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).

Own Label Company Scotland Ltd.
Registered in Scotland, 21 Swanfield, Edinburgh EH6 5RX.
Company Registered No: SC416673.
AWRS Registration Number: XNAW00000103571