1. Definitions and Interpretations
1.1 The following words and terms shall have the following meaning
• “Application” means the application form attached hereto in the Schedule to be completed by you.
• ‘Cask’ means a 200 litre cask provided by the Company to store the Product:
• ‘Cornerstone Cask Society’ means the Killarney Distilling Company Cask Sale Programme: to which these terms are referred to:
• ‘ Company’ means Innisfallen Distilling Company Limited, incorporated in 2017 with a company registration number 602008 and registered address at Muckross Road, Killarney, Co Kerry, Ireland Trading as Killarney Distilling Company:
• ‘Contract’ means the Application, the Terms and the Invoice entered into between you and the Company for the supply of the Product:
• ‘Invoice’ has the meaning as set out in clause 6.1:
• ‘Price’ means the price for the Product as set out in the Invoice which will include applicable Excise Duty and VAT:
• ‘Product’ means the whiskey products identified in the Cask Sale Programme which are poured into one 200 litre Cask and which shall for the avoidance of doubt only include the actual liquid stocks and not any casks or containers in which the Company may store the Product from time to time:
• ‘Revenue’ means the Irish Revenue Commissioners:
• ‘Terms’ or ‘Terms and Conditions’ means these terms in this Section 7:
• ‘You’ means the buyer or the person to whom the Invoice is addressed and ‘your’
shall be interpreted accordingly.
1.2 Unless the context requires a different interpretation, the following rules should be used to interpret these Terms;
a) The word ‘including’ means ‘including but not only’
b) A reference to a ‘Clause’ is to the relevant Clause of these Terms, unless otherwise stated;
c) The heading in these Terms do not affect the meaning of the Clauses;
1.3 In the event of any conflict or inconsistency between them, the terms and these Terms will take precedence over any other terms purported to apply to the Contract and shall take precedence over any terms set out in any ordering of other document purported for you to apply.
1.4 Any references of any Irish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any legal concept or thing shall in respect of any jurisdiction other than the Republic of Ireland be deemed to include what most nearly approximates in that jurisdiction to the Irish legal term.
2. Terms of Sale
2.1 The company agrees to sell and you agree to buy the Product for the Price on the terms set out in the contract.
2.2 The Company does not enter into contracts for the sale or supply of Product on terms other than these Terms.
3. Our Responsibilities
3.1 Following on from receipt by the Company of your payment in full, the Company will fill a Cask to capacity (200L) at 63.5% alcohol by volume with Product from the next available batch of Product, and a certificate of ownership (‘Cask Certificate’) will be produced in your name detailing the cask reference number.
3.2 The Company will retain your Product at The Killarney Distilling Company’s Cornerstone Cask warehouse or such other place that the Company deems suitable for the in-cask maturation of the Product.
3.3 The Company shall insure at its cost the Product on the same terms and on the same basis as other products and stock.
3.4 You acknowledge and agree that at no time you will obtain any rights in the actual cask containing the Product and that all rights, title and risk in the cask itself shall remain ours.
3.5 In the event of complete or substantial loss of or damage to your Product, the Company shall endeavour to offer you a replacement in terms of type, product and distillation date.
3.6 You acknowledge and agree that your Product must remain in our bonded warehouse for a period of 5 years from the date of distillation.
3.7 Following your request and subject to Irish licensing law and regulations and these Terms, you may use your Product to fill bottles. The Company will facilitate the bottling of your Product but is under no obligation to do so. See Section 6, page 11 for detail of charges.
3.8 After bottling, you will be liable for Irish Excise Duty and VAT at the prevailing rate unless you can arrange for shipping to a bonded warehouse within Ireland or abroad.
4. Your Rights and Responsibilities
4.1 Once your Product has been paid for, and it has been filled, and after year 3 of maturation, you will be entitled to visit and to take a 200ml sample from the Cask (once annually) by appointment subject to the terms and conditions as given in the cask programme or as updated and displayed on the Company’s website. We request notice of 10 working days for any cask visit and 30 days if a sample is requested at the time of the visit. If, due to logistical reasons, it is difficult to access a sample of your cask, then a sample of a similar aged cask will be provided.
4.2 You acknowledge and agree that there will be a loss of both alcohol and volume while the product matures in the Cask and whilst this might fluctuate, the Company anticipates that may amount to up to 2% per annum.
4.3 You warrant and represent to the Company that you have complied, are complying and will comply with the relevant Revenue regulations applicable to a contract of this nature, including that: a) you are a private customer who is purchasing this Product for a private, noncommercial use; or b) you are a Revenue recognised licensed spirits trader and a licensed bonded warehouse user in the Republic of Ireland; or c) you are an overseas trader of spirits and have appointed, or will appoint, a Republic of Ireland based representative in compliance with all Revenue requirements.
4.4 You acknowledge and agree that it is your responsibility to familiarise yourself with and comply thereafter with the requirements of Revenue as it regards the purchase of the Product from the Company.
4.5 You acknowledge and agree that the ‘Approximate’ filling levels contained in the Cask Programme are a guideline only, that each cask will have a slightly different capacity and that the Company cannot guarantee any minimum amounts of fillings.
4.6 Nothing in the Contact will grant you any rights in or licence to the Killarney Distilling Company brand or any of the Company’s intellectual property rights.
4.7 You must inform the Company of any change of name or address, and you may not transfer ownership or sell your Product during the first 3 years of the aging process. Subsequent to then, if your Product is still stored on our premises, you must seek our prior written agreement to the transfer of ownership and the new owner must agree to abide by these Terms.
5. Title & Risk
5.1 Risk and title in the Product shall pass to you once the Product purchased by you (and the Price paid in full) is poured into the Cask.
5.2. Only one person will be appointed “owner”. This person will also be the only person who can receive all of the “Exclusive Membership Benefits” outlined on page 5 of this document. However, as an exception to the aforementioned rule, each group member may pay a fee of €225 and he or she can avail themselves of the “Exclusive Membership Benefits” listed on page 5 of this document.
6. Price & Payment
6.1 On receipt of the Application, the Company shall issue you with an Invoice, for the Price plus any VAT payable thereon or excise duty (if applicable).
6.2 Any deposit paid will be strictly non-refundable.
6.3 You agree that you shall pay the full amount owing under the Invoice within the period set out in the Invoice and you acknowledge that all payments should be received prior to filling of your cask. If you have not paid the Invoice amount within the period specified, the Company shall be entitled to treat your order as rescinded and our confirmation of that Order as set out in the Cornerstone Cask Society Programme is cancelled and the Company shall have no further responsibility to you under the Contract.
6.4 The Price includes all insurance and storage charges for the first 5 years (which for the avoidance of doubt shall start on the filling date of the Cask), and you will be notified of the nominal prevailing rate for storage should you decide to hold the Product beyond the 5 year period.
7. Your representations, warranties and undertakings:
By making the application, you hereby represent, warrant, confirm and agree that:
7.1 if you are an individual, you are 18 years of age (21 years of age if a US resident) or over and that you are delivering the completed Application on your own behalf;
7.2 you completing the Application and purchasing the Product is not in breach of any laws where you are resident;
7.3 the completed Application is based solely on the information contained herein and is made pursuant to the terms of this Agreement; and
7.4 you have taken your own advice in respect of all matters in respect of the Application and the terms contained herein, including financial, legal or tax advice as necessary and to the extent that you have not done so, you confirm that you do not require such advice.
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.1.1 fraud or fraudulent misrepresentation;
8.1.2 breach of the terms as to the title of the Products implied by law; or
8.1.3 defective products under product liability laws.
8.2 Subject to Clause
8.3, the following types of loss are wholly excluded:
8.2.1 loss of profits; 8.2.2 loss of sales or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss of or damage to goodwill; and
8.2.7 indirect or consequential loss.
8.3 The Company’s total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the Price of the Products.
9. Other Benefits
9.1 Benefits associated with the Cornerstone Cask Programme for KBD merchandise shop discounts will be subject to the terms and conditions of a personalized discount card provided to you at the time you receive your Cask Certificate. Cornerstone members must present a valid picture ID at the point of sale at either KBD or Killarney Brewing Company (KBC). Golf discounts at Killarney Golf & Fishing Club will be subject to the terms and conditions of a voucher provided to you at the time you receive your cask certificate. Cornerstone members must present a valid picture ID to Killarney Golf & Fishing Club on the day of golf outings. Membership in the Cornerstone Cask Society will cease upon collection of your Product.
10.1 Any notice to be made under or in connection with the Contract shall be made in English in writing and by letter to the address for the relevant party as set out in the Cornerstone Cask Society Programme or in the case of the letters to you to the last known address which the Company has on record for you.
10.2 The Company shall not be liable for any delay in performing obligations under these Terms and Conditions where such delay is caused by circumstances beyond our reasonable control.
10.3 You may not assign, sub–contract or otherwise transfer any rights or obligations under these Terms and Conditions or in relation to the purchase of the Product by you without prior written consent from the Company.
10.4 The Terms and Conditions and the purchase of the Product by you does not create a partnership or joint venture between the parties to it, nor authorise either party to act as an agent for the other.
10.5 No amendment of these Terms will be effective unless it is signed by the appropriate Company representative.
10.6 If any provision (or part of a provision) of these Terms and Conditions should be found to be invalid, unlawful or unenforceable by a court having proper authority or if the law changes so that it becomes invalid, unlawful or not enforceable to any extent, then this clause will apply and the provision (or part affected) will be treated as having been deleted from the remaining Terms which will remain in full force and effect.
10.7 The Company will not be treated as having:
a) waived a right or remedy arising under these or otherwise in law: and/or
b) elected to abandon a right or remedy arising under these Terms or otherwise in law: and/or
c) where applicable, thereby affirmed these Terms: except if and to the extent that it has expressly documented such waiver or election (and any resultant affirmation) in writing signed and delivered to you.
10.8 These Terms and the Application constitute the entire agreement between you and the Company in relation to its subject matter and supersedes any prior arrangement, understanding or agreement between them in relation thereto and sets forth the full extent of our obligations and liabilities in respect of the Product.
10.9 To the fullest extent permitted by applicable law, the Company hereby excludes any conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, as being binding on the Company except as specifically stated in these Terms and any condition, warranty or other term concerning the Product which might otherwise be implied into or incorporated within the Agreement, whether by statute, common law or otherwise, is expressly excluded.
10.10 You acknowledge that in returning the completed Application, you have not relied on any statement, representation, warranty, understating or other assurance given or made by any person other than as expressly set out or referred to in these Terms. You hereby waive all rights and remedies howsoever arising which, but for this Clause, might otherwise be available to in respect of any such representation, warranty, undertaking or other assurance as is permissible by law.
10.11 Nothing in these Terms is intended to be construed as limiting or excluding any liability for fraud or fraudulent misrepresentation.
11.1 The Company may terminate the Contract if you fail to make payment when due or substantially breach any other obligation of these Terms or Contract. The Company may notify you in writing of such termination.
11.2 If, for any reason, the Company cannot produce the Product by 31st December 2022, it may terminate the Contract and return any monies paid.
12. Cooling Off Period
12.1 If you are a consumer you have the right to withdraw from this Contract during the period of 14 days from when you pay the Price to us in full. Such withdrawal may be effected without penalty and without giving any reason. The right of withdrawal must be exercised by notice in writing to the Company, quoting your name and address.
13. Governing Law & Jurisdiction
13.1 These Terms and the purchase by You of the Product (and any non-contractual disputes or claims) is governed by the Laws of Ireland and the parties agree that the Irish courts will have the exclusive authority to settle any dispute that arises out of or in connection with the Contract.(and any non – contractual disputes or claims)
Force Majeure 14.1
Force Majeure Provision of Product supplied to You is contingent upon the nonoccurrence of strikes, accidents, delays of carriers, delays of delivery, delay of personnel or other causes unavoidable or beyond the control of the Company. If performance of the sales of Product or any obligation is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, contagions, riots, wars, supplier failures, shortages, breach, or delays. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
15. Risks and Disclaimer
15.1 The Company is not authorised or regulated by the Central Bank of Ireland. Whiskey is not an investment of a specified kind which is regulated by the Central Bank of Ireland. The Company does not deal with any regulated investments. No information provided should be deemed to constitute the provision of financial investment or other professional advice subject to regulation by the Central Bank of Ireland.
15.2 There is a potential risk of loss, damage or theft of casks in storage. We agree to maintain insurance in this respect however this insurance may not be sufficient to cover in full all risks to which the casks may be subject.
15.3 Loss of liquid – there is a risk that whiskey held in casks will evaporate in storage at a faster than expected rate.
15.4 The future value of the casks purchased pursuant to this opportunity cannot be guaranteed and their value may go down as well as up.
15.5 As set out above, demand for whiskey is currently expected to grow. If this expected demand is not met the value of the casks may be adversely affected.
15.6 There is no guarantee that there will be a readily available market of buyers for whiskey casks purchased.
15.7 Performance of the economy and trading conditions in Ireland and globally may be affected by factors beyond our control and these may have an impact on the future value of whiskey.
15.8 International tariffs – were the USA to impose tariffs on whiskey imports, this would undoubtedly have an impact on the Irish whiskey market, as it’s the number one market for Irish whiskey exports. Tariffs imposed by other countries may also affect the market for Irish whiskey. We cannot guarantee that the value of investors’ casks will not be affected by such tariffs.
15.9 Recession – recession may occur in the near future in Ireland or other important whiskey markets, which may adversely impact the price of whiskey.
15.10 There is a construction risk regarding the proposed distillery.
16. Aquisition Declarations
By agreeing to the terms & conditions above:
- I confirm that I have read and understood the Terms and that I am fully aware of the risks entailed in investing in the Whiskey product.
- I hereby agree to the Terms and agree to observe, perform and be bound by the provisions of the Terms.
- I confirm that I wish to purchase the Product set out above and I hereby undertake and agree to accept same upon the terms of this Application, duly completed by me and subject to the Terms.
- I confirm that I will transfer the total Price to the Designated Account as required by the Terms. I agree to accept the number of casks of Product in respect of which the application may be accepted.
- I confirm that the total Price to be transferred to the Designated Account by me has not, either directly or indirectly, been derived from or obtained through, criminal conduct.
- I confirm that I agree that this Application shall be irrevocable.