The Wine Ark Marketplace (WAM) sells both wines listed by a Wine Ark managed cellarage customers (Cellar Wines) who, with the approval of Wine Ark, have listed their wine for sale on Wine Ark Marketplace (referred to in these terms as a Seller) and new release wines which are sold directly by Wine Ark (New Release Wines).
New Release Wines and Cellar Wines are collectively referred to in these terms and conditions as “Wine”.
1.1 The following terms and conditions set out the rights and obligations of Wine Ark, the Sellers and users of Wine Ark Marketplace which operates at www.wineark.com.au (“Site”) and other services offered through the Site.
1.2 Wine Ark may amend these terms and conditions at any time. Any such changes, together with their effective date, will be published on the Site. If such changes are not acceptable to you, you may (prior to such changes coming into effect) terminate your registration by notifying Wine Ark through the Site or in writing.
1.3 These terms and conditions should be read in conjunction with the following policies and terms that are accessed through the Site:
(b) Wine Ark’s returns policy.
2. REGISTRATION AND CHECKOUT
2.1 You warrant and represent that all the information provided by you while ordering or registering on the Site is complete, accurate and up to date. You undertake to promptly notify Wine Ark of any changes to such information.
2.2 You may be asked to enter details of a credit or debit card. You must ensure that you are authorised to use that card both at the time when you enter its details and when you seek to use it, and it has or will have, at all relevant times, sufficient funds or available credit to cover all charges you incur to Wine Ark.
2.3 By registering for an account and/or purchasing Wine from the WAM, you warrant and represent that, you are (if an individual) over the age of 18 (or, if higher, the legal minimum age for purchasing alcohol in the country in which you reside) and if registering on behalf of a company, partnership or other business that you have the authority to enter into an agreement on these terms and conditions on behalf of such company, partnership or other business and if resident or domiciled outside Australia, that you are legally permitted to enter into such agreement.
2.4 When placing an order on the Wine Ark website, you confirm that all the details that you have provided in completing the order and offer to purchase the Wine are true and correct. It is a condition of purchase that you verify that you are 18 years of age or over. If you do not confirm that you are 18 years or over, your order will not be processed.
2.5 Your account is not transferable. Once you become a registered guest of WAM, you will use your registered email address to log into the secure area of the Website. It is important that you:
(a) keep secure and protected your record of access codes;
(b) keep only one record of your access codes;
(c) keep your record of your password, or client number or confidential identification details you have provided separate and apart from each other;
(d) do not tell any unauthorised person your access codes;
(e) do not allow any unauthorised person to read, watch you enter, or view your access codes.
Wine Ark may cancel the use of the secure area of the WAM 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.
3. OPERATION OF WINE ARK MARKETPLACE
3.1 Wine Ark will (subject to the rest of this Clause 3) use reasonable endeavours to ensure that WAM is available 24 hours a day 365 days a year. Notwithstanding this Wine Ark shall not be responsible for or liable to any registered users for any unavailability of WAM which is outside Wine Ark’s control including but not limited to any failure of any hardware, software and/or any telecommunications links between registered users and the Internet.
3.2 Wine Ark reserves the right to close WAM at any time if it believes there are compelling legal or technical reasons to do so or for general maintenance.
4. SPECIFIC TERMS APPLYING TO THE SALE AND PURCHASE OF WINES
A. Wine Ark’s Obligations
4A.1 You acknowledge and accept that Wine Ark processes the sale of Cellar Wines on behalf of Sellers as agent for each Seller.
4A.2 Descriptions of Wine, goods and services included in WAM are accurate to the best of Wine Ark’s knowledge based upon information provided by Sellers and/or suppliers. Wine Ark will endeavour to correct errors or omissions as quickly as practicable after being notified of them.
4A.3 Wine Ark will use reasonable endeavours to check each case of Cellar Wine offered for sale through WAM to ascertain that the Cellar Wine concerned corresponds with its description as at the time it was deposited into the managed cellar in which it is stored.
B. Specific Sellers Terms Applying to the Sale of Cellar Wines
The terms set out below apply to a Seller who lists their Cellar Wine for sale through the WAM.
4B.1 Each Seller acknowledges and accepts that Wine Ark will collect payments from each buyer of the Cellar Wine and will credit the nominated Australian bank account of each Seller within 30 days of the sale being processed by Wine Ark.
4B.2 Each Seller warrants and represents to Wine Ark that:
(a) it has and will have at all relevant times the full legal and beneficial title to, free from all liens and other encumbrances all Cellar Wine offered by it for sale through WAM;
(b) the description of all Cellar Wine offered for sale through WAM is complete and accurate;
(c) that all Cellar Wine offered for sale through WAM meets the description given to it by the Seller and is of the age, type and condition described; and
(d) the Cellar Wine offered for sale through WAM is of acceptable quality.
4B.3 Sellers agree to appoint Wine Ark as agent for the purpose of selling the Cellar Wine on consignment. Wine Ark, at its sole discretion, may refuse or de-list a consignment if it is unsuitable for sale. If Wine Ark (in its absolute discretion) considers that the Cellar Wine is unsuitable for sale, the buyer will be notified and the purchase price will be refunded to the buyer and the Seller will not be entitled to any sale funds.
4B.4 Sellers warrant that all bottles lodged with Wine Ark for sale have at all times been properly stored and are in good condition. Properly stored means bottles have been kept in a cool and humid controlled environment with minimal temperature variation. Good condition means that the Seller is not aware of any faults in the wine itself. Violation of this clause may result in payment to the Seller being withheld if the buyer finds fault in the wine.
4B.5 All Sellers must pay a commission (as set out in the Rate Schedule available at https://www.wineark.com.au/rates/ to Wine Ark which is calculated as a percentage of the list price of the Cellar Wine sold on the WAM.
4B.6 Wine Sellers acknowledge that net proceeds of Cellar Wine sales are paid within 30 days of the Cellar Wine sale being processed by Wine Ark. All payments are made via Electronic Funds Transfer (EFT) only to the nominated Australian bank account provided by Sellers to Wine Ark. Sellers will provide Wine Ark with the necessary bank details and it is the Seller’s responsibility to confirm those details are correct and update those details as required prior to the Cellar Wine being listed for sale.
4B.7 Wine Ark is not responsible for any loss incurred as a result of incorrect or out of date details being provided to Wine Ark.
4B.8 Net proceeds means the sale proceeds of the Cellar Wine less commissions and associated charges as detailed in the customer’s online account portal.
4B.9 You will notify Wine Ark if you are or are required to be registered for GST and provide Wine Ark with your ABN.
4B.10 If you are in default under the terms of your managed storage agreement with Wine Ark, we may suspend access to your Wine Ark portal and any Cellar Wines listed by you on the WAM may be removed from the website.
C. Buyers Terms
4C.1 Unless otherwise agreed with Wine Ark in writing all payments for products and services covered by these terms and conditions made to Wine Ark shall be made in full by credit card.
4C.2 Each buyer shall be responsible for paying any charges that may be incurred on any Wine purchased by them through WAM.
4C.3 Each buyer acknowledges and accepts that certain products available on the WAM are old or rare Wines and in certain circumstances may be past their peak drinking window. Wine Ark accepts no responsibility for cork quality, label condition, natural ullage or wine being unpleasant.
5. GST AND WET TAXES
5.1 The price of all Cellar Wine sold on WAM includes all GST and WET payable by the Seller and the Seller is solely responsible for remitting such GST and WET to the Australian government.
6. ACCEPTANCE OF A SALE
6.2 In respect of Cellar Wine:
a. where a buyer provides Wine Ark with full payment for the relevant goods, the Seller and buyer will be deemed to have agreed to sell and buy the wine concerned;
b. after a sale has occurred, the relevant buyer and Seller will receive an invoice in their Wine Ark account and Wine Ark shall amend the information relating to the wine concerned;
c. once payment for the goods has been received by Wine Ark, the Seller cannot withdraw a listing; and
d. title to and risk in wine sold pursuant shall pass to the relevant buyer when the buyer has paid for the relevant goods in full.
6.3 You agree that risk of loss or damage in respect of New Release Wine relating to your order passes on delivery of them, including where delivery is to unattended locations (such as locations which are not attended by any person or which are attended by a person who is not acting on your behalf).
7.1 For each online order, the buyer must pay:
a. the applicable price for the relevant goods confirmed by Wine Ark; and/or
b. the delivery and handling fee specified on the Website at that time or at checkout.
7.2 Payment must be cleared before the goods are picked and then dispatched to the buyer.
7.3 Prices and availability are subject to change without notice. Typographical errors or errors with product description, pricing, images and other errors are subject to correction by Wine Ark, even after orders and/or payment are accepted. If changes occur after an order has been placed, the buyer has the option to terminate the order.
7.4 When purchasing Cellar Wine, in consideration for Wine Ark operating the WAM, each Buyer shall pay Wine Ark a commission for purchasing Cellar Wine which will be incorporated into the selling price of the Cellar Wine. Any charges due in respect of additional services provided by Wine Ark shall be charged at the applicable advertised rate.
8.1 Save as expressly provided in these terms and conditions, Wine Ark has no control over or responsibility for, nor does it give any warranties or representations in relation to:
a. the quality, safety, or legality of any Wine offered for sale through WAM;
b. the truth or accuracy of any listings or description of any Wine on WAM;
c. the ability of Sellers to sell or the Seller’s title to those goods; and
d. the buyers’ ability to pay for any particular goods.
You undertake not to disclose any passwords that Wine Ark may issue to you to any person and will keep the passwords confidential at all times.
10. LIMITATIONS ON LIABILITY
10.1 You acknowledge and accept that Wine Ark is not responsible for nor liable to you in respect of any failures to provide WAM or any other Wine Ark services provided through the Site or in respect of any losses or lost profit as a result of any sale, except in circumstances of negligence or wilful misconduct.
10.2 Except as set out expressly in these terms and conditions, Wine Ark makes or gives no conditions, warranties or representations, whether express or implied, arising by statute, common law or otherwise, including but not limited to any implied terms, warranties or conditions of title, completeness, accuracy, description, satisfactory quality, merchantable quality or fitness for a particular purpose, or non-infringement of intellectual property in relation to WAM, any other services provided by Wine Ark, any Wine offered for sale or sold through WAM and all such conditions, warranties or terms are hereby expressly excluded.
10.3 Except in relation to such liability as has been expressly excluded, the maximum aggregate liability of Wine Ark whether in contract, tort, statutory duty or otherwise (even where Wine Ark has been advised of the possibility of such loss or damage) for any loss or damage whatever arising from or in relation to these terms and conditions and/or any trade conducted through WAM shall, in respect of any one or more events or series of events (whether connected or unconnected) taking place within any twelve month period, be limited to $10,000. This limit shall also apply in the event that any exclusion or other provision is held to be invalid for any reason and Wine Ark becomes liable for loss or damage that would otherwise have been limited.
10.4 Nothing in these terms and conditions shall be construed to exclude, restrict or modify any guarantee applicable to a consumer that may apply under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘Consumer Guarantee’). Where a Consumer Guarantee is not able to be excluded, Wine Ark’s liability shall be limited at its sole discretion, to supplying the service again, or payment of the costs of having the service supplied again. Subject to the foregoing, wine-ark.com.au shall have no liability to any user of any of the Website or the information on it, for any reason.
10.5 In the event that these terms and conditions constitute a supply of services to a consumer as defined in the Competition and Consumer Act 2010 (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 Wine Ark’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:
a. 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
b. 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.
11. TERM AND TERMINATION
If your agreement to use Wine Ark Marketplace is terminated, your registration will be cancelled.
Wine Ark reserves the right to assign or sub-contract any or all of its rights and obligations. If Wine Ark exercise this right, Wine Ark shall name the assignee or subcontractor on the main screen of the Site. You may not without the written consent of Wine Ark assign or dispose any of your rights or obligations under your agreement with Wine Ark.
14. FORCE MAJEURE
No party shall be deemed to be in breach of any 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.
These Terms and any contract including them shall be governed by the laws of NSW and the parties hereby submit to the non-exclusive jurisdiction of the Courts of that State.
16.1 All communications shall be by notice in writing and sent to Wine Ark and the Seller or buyer at their nominated email address as advised from time to time. A notice shall be deemed received when the sender hand delivers it or if email when the sender receives confirmation of delivery receipt.
16.3 No waiver or failure or delay to act by Wine Ark in respect to any default on the part of the buyer or Seller in the performance of these Terms shall prevent actioning that or any other default by the Seller or buyer.
16.4 The singular shall include the plural and vice versa, words importing any gender shall include every other gender, and where there is more than one party comprising the Seller or buyer, they shall be bound jointly and severally.
17. DELIVERY REQUIREMENTS
a. Wine Ark or its agent will deliver the goods you order to the address you specify in your order (as set out in your specified delivery notes), within the agreed time frame, subject to their availability.
b. Anyone at the delivery address who receives the goods will be presumed by Wine Ark to be authorised to receive the goods.
c. If there is no-one at the delivery address or no-one of appropriate age to receive the order, Wine Ark may charge you additional delivery fees.
d. 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. Wine Ark may refuse to deliver the goods if the person receiving the goods is unable or unwilling to provide evidence of proof of age.
e. You agree that the address to which we may deliver is the address you gave for delivery as part of your order or any other address we may subsequently agree to accept as the delivery address.
f. We will not deliver unless all requested delivery details are given when you place your order.
g. We will not deliver your order if we consider any delivery circumstances are unsuitable for any reason, including because any likely recipient of the ordered products appears to our delivery personnel to be under the influence of alcohol or drugs, under the age of 18 years or acting for or on behalf of a person who we consider may be unsuitable to accept delivery for any reason (including because they may be under 18 years).
h. We may not deliver your order if any of our requests for verification (such as proof of identity or age) are not met.
i. You must not purchase any products from us for the purposes of resale to any third party. If we have a concern with the quantity of products you have ordered from us or that you may be otherwise purchasing products for resale, we may contact you when you place the order or within a reasonable time after you submit your order to obtain further information. We also reserve the right to cancel your order if we believe in our reasonable opinion that you have purchased products for resale purposes.
j. Once the goods are delivered to you, you will own them and it is your responsibility if they are lost or damaged.
k. If we have attempted delivery of your order and it fails for any reason, we will return your products to our premises.
l. We may record all details relating to deliveries. Our records may include details of the forms of verification referred to above and taking a photograph of the completed delivery. We will only use and disclose such records for reasonable purposes, which may include proof of delivery, administration, and complying with record keeping requirements under liquor licensing laws and law enforcement.
18. DELIVERY RETURNS
If we have attempted delivery of your order and it fails for any reason, we will return your products the relevant Wine Ark location. You can contact Wine Ark to arrange a re-delivery or a re-direction to a different address. We will also contact you or the recipient via email to advise of the failed delivery attempt.
If we do not hear from you or the recipient within 5 days from the initial communication, we reserve the right to cancel and refund your order. You agree that we may return and refund your order where we were unable to deliver due to circumstances beyond our control. This is including but not limited to providing an incomplete or incorrect address, no access to your delivery address, or where the “Delivery pre-conditions” above were not met. Where we are not able to deliver the Cellar Wine to you, Wine Ark in its absolute discretion may elect to either:
a. cancel your order and title to the Cellar Wine reverts the original Seller; or
b. refund your order and title to the Cellar Wine will pass to Wine Ark upon the refund being processed by Wine Ark.
We may cancel your order before completion of delivery in whole or in part. We may do this even if we have received payment from you or have sent you a tax invoice. We will where possible give you reasonable notice of the cancellation by contacting you via phone, text, or email. The circumstances in which we may cancel your order are as follows:
a. if any of the ordered products are not available;
b. if there was any error in the description of any ordered products or their price as advertised by us;
c. if your order is in breach of any other terms, or contrary to any person’s rights or the law; or
d. if these terms and conditions (for example under “Delivery ” above) provide that we may not deliver your order.
If we cancel your order, we will issue a full refund (including delivery charges) within 10 Business Days.
You agree that you cannot make changes to an order after it has been placed.
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 you or your nominated person is of appropriate age to accept the goods upon collection. Wine Ark may refuse to deliver the goods if the person collecting the goods is unable or unwilling to provide evidence of proof of age.
21. TITLE AND PLACE OF SUPPLY
You agree that title to the products you purchase (and the place of our supply of those products to you) occurs at the place where we dispatch the products to your order. We do not supply alcohol to you from places which are not licensed under applicable alcohol licensing laws, even though such other places may be the delivery location. Immediately on us making a refund to you for any products (less any amount you have agreed we may deduct, for example under “Delivery returns/non-collection” or “Cancellations” above) you agree that the title in those products shall pass back to us.
22. DELIVERY RECORDS
We may record all details relating to deliveries. Our records may include details of the forms of verification referred to above and taking a photograph of the completed delivery. We will only use and disclose such records for reasonable purposes, which may include proof of delivery, administration, and complying with record keeping requirements under liquor licensing laws and law enforcement.
23. NORTHERN TERRITORY
If you are a Northern Territory resident or ordering this for delivery to the Northern Territory, the listing of a product on our website does not constitute an offer to sell that product to you. Prior to any offer or acceptance, additional price checks will be completed and the price of the product may increase to ensure compliance with the Northern Territory Minimum Unit Price Legislation. This may change the final price calculation for your order.
24. WEBSITE CONTENT
The materials (including all software) and services on the WAM website are provided “as is” without warranties of any kind. This includes warranties or merchantability, fitness for a particular purpose, or non-infringement of intellectual property. Wine Ark’s obligations with respect to its products and services are governed solely by the agreements under which they are provided and nothing on this website should be construed to alter such agreements.
Wine Ark does not warrant the accuracy and completeness of the materials, information or services on the WAM website.
Wine Ark may make changes to the materials and services on this website, or to the products and services described in them, at any time without notice. The materials and services on this website may be out of date, and Wine Ark makes no commitment to update the materials and services on the website.
25. CREDIT REPORTING
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.
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.
26. MAILING LIST
Wine Ark 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. Wine Ark reserves the right to unsubscribe registered users from our mailing lists, without reason or notice.
27. INTELLECTUAL PROPERTY
You acknowledge that all copyright, trademarks and other intellectual property rights in and/or relating to the Website and Wine Ark’s services are owned by or licensed to Wine Ark.
You must not use any of those intellectual property rights, Website or Wine Ark 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:
a. 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.
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.