1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS & CONDITIONS
The following terms and conditions govern your use of the Wine Ark website (“Website”) and the materials and information accessible on or from the Website. The Website is only available for use by persons who are 18 years of age or older (or, if higher, the legal minimum age for buying alcohol in the place in which you reside) and who can legally enter into binding agreements.
Your use of the Website means you accept these terms and conditions. If you do not agree with these terms and conditions, please do not visit or use the Website.
2. REDIRECTED URL’s
These terms and conditions also apply to all users redirected from other URL’s owned by Wine Ark Pty Ltd
3. REGISTERED GUESTS, PASSWORD AND SECURITY
Registered Guests agree to:
provide certain current, complete and accurate information about yourself;
maintain and update this information as required to keep it current, complete and accurate.
wineark.com.au may refuse to provide or to continue to provide access to the Website at its sole discretion until you are accepted as a Registered Guest. wineark.com reserves the right to terminate your use of the Website if any information provided by you is incomplete or inaccurate.
Your Registered Guest account is not transferable. Once you become a Registered Guest, you will receive an access code, which consists of a client/user number and password. Your access code is used to log into the secure area of the Website. It is important that you:
keep secure and protected your record of access codes;
keep only one record of your access codes;
keep your record of your password, or client number or confidential identification details you have provided separate and apart from each other;
do not tell any unauthorised person your access codes;
do not allow any unauthorised person to read, watch you enter, or view your access codes.
wine-ark.com may cancel the use of the secure area of the Website at any time without notice if we believe the access codes have been used, or will be used in a way that will cause confidential information to be released.
4. REGISTERED GUEST CONDUCT
Your right to use the Website is personal to you. You undertake not to use or allow the Website to be used:
to receive, store, display, send or publish any material which is offensive, abusive, indecent, defamatory, obscene racially or ethnically abusive or menacing;
to receive, store, display, send or publish any material in breach of confidence;
to receive, store, display, send or publish any material which is harmful to minors in any way;
to receive, store, display, send or publish any material that infringes the intellectual property rights, privacy, publicity or any other rights of any third party;
to cause annoyance, inconvenience or needless anxiety;
in breach of any applicable law, regulation or code;
to send unsolicited or unauthorised advertising , “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation; or
in a manner which is otherwise unlawful.
wineark.com.au may (temporarily or permanently) grant limited access or deny access to the Website or any part of it or cease to provide any of its facilities where, in its sole discretion, continued use by you is or is likely to contravene any of the above provisions.
5. WEBSITE SUBSCRIPTION FEES
wineark.com.au may, from time to time, impose charges for certain services and subscriptions available from within the secure area of the Website. Prior to having access to the information contained in the subscription, you will be notified that if you take up the subscription, you will be charged a fee.
If you are not completely satisfied with your subscription, wineark.com.au agrees to refund the remaining portion of your subscription. In order to obtain a refund of your unused subscription, you must apply to wineark.com.au for the refund. In calculating the refund wineark.com.au will have no regard to any “free months” that may have been included in the subscription offer and will only calculate the refund on the number of months that have actually been paid for.
6. WEBSITE ORDERS & DELIVERIES
Where the goods are not available, you will be notified of this by wineark.com.au as soon as possible. wineark.com aims to include up-to-date pictures of all of the products for sale on the Website. However, our picture of the goods may differ from the actual goods delivered.
wineark.com.au reserves the right to restrict sales to retail quantities when supplying resellers and distributors.
wineark.com.au or its agent will deliver the goods you order to the address you specify in your order, within the agreed time frame, subject to their availability.
Anyone at the delivery address who receives the goods will be presumed by wine-ark.com to be authorised to receive the goods.
If there is no-one at the delivery address or no-one of appropriate age to receive and pay for the order, wineark.com.au may charge you additional delivery fees.
If your goods include products in respect of which the law prescribes a minimum age for purchase, you must be 18 years of age or older (or such other higher minimum age as is prescribed by the law), and you must ensure that a person of appropriate age is available to accept delivery of the goods. wineark.com.au may refuse to deliver the goods if the person receiving the goods is unable or unwilling to provide evidence of proof of age.
Once the goods are delivered to you, you will own them and it is your responsibility if they are lost or damaged.
7. WEBSITE PRICES & PAYMENT
For each online order, you must pay:
the applicable price for the relevant goods confirmed by Wine Ark Marketplace; and/or
the delivery and handling fee specified on the Website at that time, or confirmed at a later date.
Payment must be cleared before the goods are dispatched. All payments are to be made through the payment system provided by the Website, unless otherwise agreed. We are unable to accept COD payments.
Prices and availability are subject to change without notice. Typographical, product description, pricing, images and other errors are subject to correction, even after orders and/or payment are accepted.
wineark.com.au may vary prices in the event of price changes or mistakes made by suppliers on reasonable prior notice to you. If wineark.com.au requests payment for increased prices, you may cancel the order by giving notice to wineark.com.au, which must be received within 7 days of the announcement of the increase.
Published member discounts are only available to wineark.com.au CELLAR CLUB members, whose membership fees and accounts are up to date.
GST will be included within the prices and fees charged by Wine Ark Marketplace and is payable by you at the same time as you pay such prices and fees. “GST” means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
9. WEBSITE SECURITY CAPABILITIES
wineark.com.au utilises state-of-the-art E-Commerce systems. To ensure the safe and secure transmission of credit card details, wineark.com.au uses 128 bit Secure Sockets Layer (SSL) technology, through a secure-leased line that runs directly to our bank’s merchant facilities.
This means that the credit card information you send is encrypted by your computer, and then decrypted again on our side, preventing others from accessing your private information in between. So, when using an SSL capable browser, shopping on the Website is the safest kind of transaction possible with a credit card.
The payment systems utilized by wineark.com ensure that your credit card details are NOT stored on our Website server or on any of our databases. Only the bank that processes the transaction has any record of your credit card details.
10. WEBSITE FRAUD
wineark.com.au is committed to reducing fraud. Our policy is that we will prosecute any cases of fraud that we identify. Should any transaction be completed on the Website using a stolen credit card, we will co-operate with the relevant authorities to prosecute the offender.
11. CREDIT REPORTING AND DISCLOSURE OF PERSONAL INFORMATION
For the purposes of applying our Credit Policy and conducting our credit management of your account, you authorise us to obtain from (and disclose to) credit reporting agencies certain information about you for all purposes permitted by the Privacy Act 1988 (Cth). This information may include personal information (such as your name, address, telephone numbers, bank account or credit card details, billing details), your credit worthiness, credit standing, credit history or capacity and any information about your use of the Website.
wineark.com.au may refuse your application for, or monitor your usage of, or restrict your access to, the Website on the basis of our assessment of credit information relating to you. You are entitled to see and correct any credit information we hold about you.
You acknowledge and agree that we may disclose your personal information if required to do so by law.
You authorise us to disclose your personal information obtained by us in connection with your use of the Website to our Related Corporations, telecommunications suppliers, our agents and our contractors and use that information for account management, business planning and marketing purposes.
12. WEBSITE RETURNS
wineark.com.au offers a 7-day return policy on all unopened products except those sold on a “No Returns Basis”. We also offer a 7-day return policy on “Dead on Arrival”, “Incorrectly Shipped” or “Damaged in Transit” products. Carefully review the conditions of our Returns Policy before making your purchase.
13. WEBSITE EXPORT & LEGAL RESTRICTIONS
In Australia, it is an offence to sell or supply to or to obtain liquor on behalf of a person under 18 years of age. Therefore, we require that all Australian Website users, Registered Guests, Subscribers and Clients be at least 18 years of age. We also required that someone 18 years of age or older must be present to sign for deliveries or collections containing alcohol.
14. WEBSITE MAILING LIST
wineark.com.au offers all Registered Guests the option to join our mailing list. Subscription to this service is optional and free.
If you belong to our mailing list, we will send information about events, specials, new features, services & products available through the Website. This is intended to keep you up to date with our Website, and to make your wine collecting, storing and trading experience easier. Should you no longer wish to receive this information, there is an option to unsubscribe from our mailing list from within the secure area of the Website. You may unsubscribe at any time.
It is our policy to actively remove old email addresses and domains that consistently send failure messages to our email servers. Therefore, we request that you to keep your contact information up to date. wineark.com reserves the right to unsubscribe Registered Guests from our mailing lists, without reason or notice.
15. INTELLECTUAL PROPERTY
You acknowledge that all copyright, trade marks and other intellectual property rights in and/or relating to the Website and wineark.com.au’s services are owned by or licensed to wineark.com.
You must not use any of those intellectual property rights, Website or wineark.com.au services, except in the manner provided in these terms and conditions.
Subject to provisions of the Copyright Act 1968 (Cth), you must not, in any form or by any means:
copy, adapt, reproduce, broadcast, store, transmit, distribute, print, publish or create derivative works from any information or material on the Website; or material on the Website;
b. alter, decompile, disassemble, reverse engineer or modify any material or information that you receive from the Website which can be accessed through the Website; or
c. use or apply, for commercial purposes any material or information on the Website without the prior written consent of Wine Ark Marketplace.
All trademarks, brands and names appearing on the Website are the property of their respective owners. Nothing contained on the Website is intended to grant any express or implied right to you to use or exploit any patent, copyright, trademark or trade secret information.
For further information on using the content, trademarks, brands and names of the Website please contact us at [email protected]
16. WEBSITE LINKS
Any third party products, services and information offered for sale or advertised which are accessible from the Website via a hyperlink to a third party website (“Third Party Website”) are not produced or endorsed by wineark.com.au and your legal relationship is with the third party supplier.
wineark.com.au has not checked the accuracy or completeness of the information or the suitability or quality of the products and services of the third parties.
You must make your own enquiries with the relevant third party supplier direct before relying on the third party information or entering into a transaction in relation to the third party products and services accessible from the Website via a hyperlink to the Third Party Website.
wineark.com.au may receive fees and/or commissions from third parties whose products and services are displayed or made available from the Website via a hyperlink to the Third Party. You acknowledge and consent to us receiving the fees and/or commissions.
17. THIRD-PARTY STATEMENTS
wineark.com.au does not monitor or review statements made by persons other than wineark.com.au (“Third Parties”) on the Website. Third Parties may post statements or information on some portion of the Website from time to time (“Third Party Posted Material”). wineark.com.au makes no representations to you in relation to the accuracy, quality, legality, ownership or other aspect of any Third Party Posted Material.
18. TERM AND TERMINATION
Either party may terminate your use of the Website and your right to receive other wineark.com.au services provided through the Website at any time by either party giving the other written notice of termination.
wineark.com.au may immediately terminate your use of the Website and your right to receive other wineark.com.au services without prior notice if:
you fail to pay any charges payable pursuant to these terms and conditions (or any other agreement you may have with one of our Related Corporations) by the respective due date;
subject to paragraph (a), you default in performance or observance of these terms and conditions and, in the case of a breach capable of remedy, you fail to correct that breach within 7 days of written notice from us;
you are declared bankrupt or an administrator, receiver or manager or receiver and manager or a liquidator or provisional liquidator is appointed to you or you enter into any arrangement with your creditors or any class of creditors;
you die or, in the case of a partnership, on dissolution or on the filing of an application to dissolve the partnership;
our supplier terminates its agreement with us.
If your use of the Website and your right to receive other Wine Ark Marketplace services is terminated for any reason by either party, you must immediately pay us all amounts owed by you.
19. LIMITATIONS ON USE
If wineark.com.au makes a request to you to stop using the Website or to promptly return or destroy copies of information provided on the Website, you must immediately comply with that request, and confirm in writing to wineark.com.au within 5 business days after that request, that you have done so.
20. DOWNLOADABLE DOCUMENTS
While wineark.com.au will take all reasonable efforts to ensure that files that you down load from this Website are free from viruses, worms, Trojan horses and other material of a destructive nature, your access to or use of them is at your own risk.
21. DISCLAIMER OF WARRANTIES
You agree to use the Website and other services provided by wineark.com.au at your own risk. The Website and other services are provided ‘as is’. They are not provided for professional use. Subject to any non-excludable provisions of the Trade Practices Act 1974 (Cth), wineark.com.au disclaims any and all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. wineark.com.au makes no warranty that the Website or its other services will meet your requirements, nor that they will be continual and uninterrupted, timely, secure, or error free; nor does wineark.com.au make any warranty as to the results that may be obtained from the use of the Website or other services or as to the accuracy or reliability of any information obtained through the Website or other services or that defects in the software will be corrected. No advice or information, whether oral or written, obtained by you from or through the Website or other services shall create any warranty not expressly made in these terms and conditions.
22. LIMITATION OF LIABILITY
While wineark.com.au shall use all reasonable care in providing the Website and other services, we shall not have any liability whatsoever in contract, tort or otherwise to any party in respect of any loss or damage (including without limitation direct, indirect, incidental, special or consequential loss, economic loss or loss of other contracts, loss of profit or revenue, business interruption, loss of programs or other data on your information handling system or costs of replacement goods) arising out of the use of or reliance on the materials or information presented on the Website, the use of any Third Party Website and any Third Party Posted Material or other services, any inaccuracy or error or omission from any part of the Website or other services or your inability to use the Website or the other services and information contained therein even if wineark.com.au was expressly advised of the possibility of such loss or damage.
In the event that these terms and conditions constitute a supply of services to a consumer as defined in the Trade Practices Act 1974 (Cth) or relevant State or Territory legislation, nothing contained in these terms and conditions excludes restricts or modifies any condition, warranty or other obligation where to do so would be unlawful and in such event wineark.com.au’s sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur shall be limited to:
in relation to services – (1) the supplying of the services again, or (2) the payment of the cost of having the services supplied again, as we may elect; and
in relation to goods – (1) the replacement of the goods or the supply of equivalent goods, or (2) the payment of the cost of replacing the goods or of acquiring equivalent goods, as we may elect.
23. RELEASE AND INDEMNITY
You hereby waive, release, forgive, discharge and relinquish any and all claims that you now have or may have against wine-ark.com, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental to any transaction.
You hereby agree to indemnify, defend and hold wine-ark.com, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from and against any and all claims, loss, damage, tax including GST, liability and/or expense that may be incurred by wineark.com.au, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives arising out of or in connection with the performance of its duties as described in these terms and conditions including the legal costs, fees and expenses of defending itself against any claim by any or all of the parties to any transaction and/or by any other person and/or as a result of you taking any action or refraining from taking any action or instituting or defending any action or legal proceeding.
You further agree to indemnify and hold wineark.com.au, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from any claim or demand, including reasonable lawyers’ fees, made by any third party due to or arising out of your use of the Website or other services, the breach of these terms and conditions, or the infringement of any intellectual property or other right of any person.
24. VARIATION ON THESE TERMS & CONDITIONS
wineark.com.au may change these terms and conditions from time to time. Any changes will be posted on the Website. You are responsible for reviewing the Website to ensure compliance with these terms and conditions (as varied from time to time).
25. ENTIRE AGREEMENT
You acknowledge and agree that these terms and conditions (together with the provisions of your registration and our various Policies) comprise the entire agreement between the parties and exclude all oral or implied representations and terms unless such terms are agreed between the parties in writing.
If any part of these terms and conditions are or become invalid, that part shall be severed and such invalidity shall not affect the validity of the remaining terms and conditions.
27. RELATIONSHIP OF THE PARTIES
It is agreed that no partnership, joint venture, association, co-operative, agency or employee/employer relationship is intended by these terms and conditions and any implication as to any such relationship is hereby expressly negatived.
28. FORCE MAJEURE
No party shall be deemed to be in breach of these terms and conditions (other than any obligation to pay money) by reason of any delay in performance or non-performance to the extent that such delay or non-performance is due to causes beyond its reasonable control (including, but not limited to, any strike, lock-out or other form of industrial action, acts of God, war, riot, fire, flood or storm) and the party concerned has acted and continues to act reasonably and prudently to prevent and to minimise the effect of such causes.
wineark.com.au reserves the right to assign or subcontract any or all of our rights and obligations. If we exercise this right, we shall name the assignee or subcontractor on the main screen of the Website and you will be entitled (if you do not agree to such assignment or subcontract) to terminate your agreement with us by giving not less than 3 working days notice to us. You may not, without our written consent, assign or dispose any of your rights or obligations under your agreement with us.
30. SURVIVAL OF CERTAIN PROVISIONS
Each indemnity under these terms and conditions is a continuing indemnity and shall constitute a separate and independent obligation of the party giving the indemnity from its other obligations under these terms and conditions and, unless a contrary intention is indicated, shall survive the termination or completion of your agreement with us.
Any party’s failure to insist on compliance or enforcement of any of these terms and conditions shall not affect its validity or enforceability or constitute a waiver of future enforcement of that term and condition or of any other term and condition.
32. GOVERNING LAW
These terms and conditions shall be governed by the law in force in the State of New South Wales, Australia or, where applicable, the Commonwealth of Australia, and the parties expressly submit to the non-exclusive jurisdiction of the courts of that State or, where applicable, of the Commonwealth, and the courts of appeal from them for determining any dispute concerning your agreement with us.