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Conditions of use

Cellar Link Marketplace - Conditions of Use

Purchase of Products through Cellar Link Marketplace

 

Table of Contents

1. Application of Terms

2. Definitions and interpretation

3. Website terms of use

4. Privacy

5. Information or advice provided by Cellar Link

6. Purchase Orders

7. Payment

8. Taxes and expenses

9. GST, WET, and Import Duty

10. Late payment and non-payment

11. Title and risk

12. Insurance

13. Delivery of Products Purchased on Cellar Link Marketplace

14. Returns and refunds

15. Collection of Products from the Storage Facility

16. Limitation of Cellar Link’s liability

17. Termination

18. General

 

1. Application of Terms

i. Words and phrases which are defined in clause 2 have the same meaning when used elsewhere in these Terms. Defined terms are generally indicated by the use of a capital letter.

ii. The supply of Products and Services by Cellar Link, and business undertaken by Cellar Link, is in all cases subject to these Terms. No statement, act or omission by any person acting or purporting to act on behalf of Cellar Link has effect to waive, add to or vary these Terms, unless the waiver, addition or variation is in writing and signed by a duly authorised representative of Cellar Link.

iii. The use of a Customer's own terms and conditions is no derogation from these Terms. In particular, Cellar Link will not be bound by any terms attaching to or accompanying any Customer order, and the Customer agrees that all such terms are excluded.

iv. These Terms include and should be read in conjunction with the following policies and terms that are accessed through the Website:

(a) Cellar Link’s privacy policy;

(b) Cellar Link’s how to order and pay policy

(d) Cellar Link’s website terms and conditions.

v. Cellar Link may add to or amend these Terms at any time by giving notice to the Customer by e-mail or post or by placing a copy of the Terms as amended on Cellar Link's website. Such addition or amendment will take effect 30 days after notice is given, or later in accordance with its terms. Without limitation, continued placement of orders by the Customer with Cellar Link after the notice has been given will be conclusive evidence that the Customer has accepted the terms as added to or amended. 

2. Definitions and Interpretation 

2.1 In these Terms the following definitions apply:

i.           “ATO Determination” means the Australian Tax Office determination A New Tax System (Goods and Services Tax) Act 1999 Classes of Recipient Created Tax Invoice Determination (No. 1) 2000 and other applicable determinations in force from time to time.

ii.         “Auto pay” means payment by electronic, automated means from a credit card account or by direct debit from a bank account.

iii.         "Business Day" means any day other than a Saturday, Sunday or public holiday in Sydney. 

iv.         "Case" includes case, box, carton or other storage container used for the storage of Products.

v.         "Cellar Link" means Cellar Link Pty Ltd ABN 45 132 635 842 and, where the context permits, includes its officers, employees, agents and contractors.

vi.         “Cellar Link Account” means an account opened by the Customer with Cellar Link for access to or for the purchase or sale of Products or Services.

vii.         “Cellar Link Fees” include but are not limited to the following:

viii.         “Subscription Fee” which means Cellar Link’s fee for subscription to an applicable Cellar Link Account.

ix.         "Claim" includes any claim, demand, action, proceedings, suits, liability, loss, damages, cost (including legal costs) or expense suffered or incurred whether in contract or tort, under statute or otherwise.

x.         "Contribution" means any tasting notes, comments, photos, data, or other information or materials that the Customer Uploads to the Website and is either displayed solely to the Customer or publicly. "Customer owned Contribution" means a Contribution that the Customer, rather than a third party, owns.

xi.         "Customer" includes:

(a)    a person with whom any contract for the provision of Products or Services is made by Cellar Link; and

(b)    a person to whom Cellar Link provides Products or Services;

(c)    and, where the context permits, his officers, employees, agents or contractors other than Cellar Link.

xii.         "GST" means the goods and services tax as provided for by the GST Law.

xiii.         “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) (as amended) or any other goods and services tax, value added tax, consumption tax or tax of similar effect levied from time to time.

xiv.         “GST Law” means the GST Act and associated legislation including without limitation delegated legislation.

xv.         "Intellectual Property Rights" includes all rights in respect of copyright, trade-marks, patents, designs, protection of confidential information, circuit layouts, and any other intellectual or industrial property rights whether arising under statute or otherwise

xvi.         “Market Price” means the price paid to Cellar Link by the buyer.

(a)    “RRP” (recommended retail price) the price as recommended by the manufacturer or the broader market 

(b)    “List Price” – The price which Cellar Link has chosen to make the product available to the market foregoing any particular conditions or rules attached to the purchase of a product.

(c)    “Gold Subscribers price” – when/whilst stocks are available, the price of such stock shall be at a preferential price, however, it will also have conditions and rules attached to accessing the price, which is reserved for Gold Subscribers.

(d)    “Platinum Subscribers price” – when/whilst stocks are available, the price of such stock shall be at a preferential price, however, it will also have conditions and rules attached to accessing the price, which is reserved for Platinum Subscribers.

xvii.       “Password” means a secret word or phrase that a Customer uses to gain admittance or access to services or information on the Website.

xvii.       "Product" means any goods of any kind whether supplied by Cellar Link to a Customer, or promoted on the Website.

xix.        “Product List” means the list of products available for sale by Cellar Link, published on the Website.

xx.         “Provenance Guarantee” means Cellar Link’s assurance of the source and quality of a Product supplied to the Customer by Cellar Link. 

xxi.         “Registration” means registration by the Customer on the Website for either a Cellar Link shopping account or to receive Cellar Link’s newsletters by email and “Register” has a corresponding meaning. 

xxii.         “Reward Points” & “Bonus Reward Points” means points offered to the customer when they perform certain functions on the website, such as Registration, shopping on the web site, ordering and paying for goods and services. The points awarded may have an expiry date and time. They are not transferrable, not redeemable for cash, and not valid with any other product or service unless explicitly displayed on the web site at the time of purchase.

xxiii.        “Schedule of Fees and Charges” means the schedule of Cellar Link Fees and Cellar Link’s charges for the Services, as published by Cellar Link from time to time.

xxiv.        "Service" means any storage, delivery, or other service provided or performed by Cellar Link for a Customer.

xxv.         “Subscription” means subscription by the Customer on the Website for a Cellar Link Account and “Subscribe” has a corresponding meaning.

xxvi.        “Storage Facility” a secure location used for logistical purposes of Cellar Link’s business, including storage, cross docking, picking, packing, dispatch and returns handling.

xxvii.        “Tax” includes any tax, levy, duty, excise or impost, including, but not limited to, GST, WET, which apply to the supply, import, export, purchase of or payment for any Product or the performance of or payment for any Service.

xxviii.        “Import Duty” means a tax levied on imported products

xxix.         "Terms" means these terms and conditions and Cellar Link’s policies referred to in clause IV, each as varied from time to time in accordance with clause V.

  xxx.         "Upload" means to post, enter, or otherwise provide to the Website or the Cellar Link software.

xxxi.         "Website" means Cellar Link's World Wide Web site at the internet address www.cellarlink.com.au

xxxii.         "WET" means the wine equalisation tax levied under the A New Tax System (Wine Equalisation Tax) Act 1999 (Commonwealth) (as amended) or any tax of similar effect levied from time to time.

xxxiii.        Except where the context otherwise requires, in these Terms:

(a)    the singular includes the plural and vice versa;

(b)    words importing one gender include other genders;

(c)    the words "written" and "in writing" include any communication by letter, facsimile or email;

(d)    a reference to an individual includes a partnership, body corporate, government authority or agency and vice versa;

(e)    a reference to a party includes that party's executors, administrators, successors and permitted assigns;

(f)     if a party consists of 2 or more individuals, these Terms apply to all of them jointly and each of them severally;

(g)    headings are for convenience only and do not affect the interpretation of these Terms; and

(h)    any expression used that is defined in the GST Law has that defined meaning.

  1. Website Terms of Use

(a)    Registration on the Website provides the ability to store frequently used information such as Product queries and personal information used to speed check-out, as well as access (where subscribed) to Cellar Link software,  prices and premium third-party content licensed by Cellar Link. The Customer warrants and represents that all the information provided by the Customer in the course of registering and/or subscribing on the Website is complete, accurate and up to date. The Customer undertakes to promptly notify Cellar Link of any changes to such information.

(b)    A person may only register and/or subscribe and remain registered and/or subscribed on the Website if he can enter into legally binding contracts under Australian law and if his registration and/or subscription is/are and will remain permitted under the law of the person’s country of domicile or residence, if other than Australia. A person can only register and/or subscribe on the Website if, and the Customer represents and warrants that:

i.         (if the Customer is an individual or a group of individuals) the Customer is or all members of the group are over the age of 18 (or, if higher, the legal minimum age for buying alcohol in the state in which the Customer resides or requires delivery); and

(c)    (if the Customer is the representative of a company, partnership, trust or other organisation) the Customer has authority to place orders on behalf of such company, partnership, trust or other organisation and that the Customer is legally permitted to enter into each contract that results from acceptance of the Customers orders.

(d)    Upon registration and/or subscription, the Customer must provide a working email address and a password and all other relevant address and contact details required by Cellar Link. The Customer, or the Customer's authorised representative, must ensure that Customer’s email address and password remain confidential at all times and agrees that the Customer is solely and entirely responsible for all activities which occur using the Customer’s email address and password. The Customer must notify Cellar Link immediately if the Customer becomes aware of any unauthorised use of the Customer’s email address and password. Each Customer email address and password must be used by a single user and/or the Customer's authorised representative(s) and is not transferable. Cellar Link may suspend or terminate access to an account if it suspects unauthorised or improper use.

(e)    It is the Customer’s responsibility to inform Cellar Link of any change to his email address and other relevant address and contact details. If any communication from Cellar Link to the Customer is returned to Cellar Link as undelivered, the Customer’s account may be deemed to be temporarily closed (at Cellar Link’s discretion). The Customer’s account will remain temporarily closed until the Customer notifies Cellar Link of the Customer’s correct email address, physical address and contact details (as the case requires). While the Customer’s account is temporarily closed, Cellar Link will not send the Customer any communications. Cellar Link shall not be liable to the Customer for any direct, indirect or consequential loss, damage, cost or expense suffered by the Customer on account of the temporary closure of the Customer’s account, including without limitation any change in value or any loss of opportunity, market or profit.

(f)     If the Customer is issued with a password by Cellar Link, the Customer agrees to take responsibility for the safekeeping of the Customer’s password and will not disclose it to anyone. The Customer is liable if an unauthorised person uses the Customer’s password. The Customer agrees to release and forever indemnify Cellar Link in relation to any liability howsoever arising out of the unauthorised use of the Customer’s password.

(g)    A valid credit, debit or charge card with associated the Customer’s name, billing address, and phone number is required when making a purchase. The Customer may maintain this information, as well as other information such as shipping addresses, on the My Account page of Cellar Link's site. All personal information provided to Cellar Link will be treated in accordance with the Cellar Link’s Privacy Policy. The Customer must ensure that the Customer is fully entitled to use that credit, debit or charge card both at the time when the Customer enters its details and when the Customer seeks to use it, and that the card has or will have, at all relevant times, sufficient funds or available credit to cover all charges the Customer incurs to Cellar Link.

(h)    The Customer acknowledges that Cellar Link or its associates or related corporations own or are licensed to use all Intellectual Property Rights in the Website (including, but not limited to, any images, photographs or text which appear on the Website). The Customer agrees that the Customer will make no representation to the contrary, and that the Customer must not use or copy the Website in any manner which is inconsistent with the rights of the owner or licensee of such Intellectual Property Rights.

(i)     As a condition of use of the Website, the Customer expressly agrees not to use the Website, the Cellar Link software, or other internet services provided by Cellar Link for any purpose that is unlawful or prohibited by these Terms. The Customer agrees to abide by all applicable local, state, national, and international laws and regulations. The Customer agrees that the Customer is solely responsible for all acts or omissions that occur using the Customer's account, including the content of transmissions through Cellar Link's service.

(j)     Without Cellar Link's prior written consent the Customer may not reproduce, distribute, modify, create or display derivative works based on, repost or otherwise use the content of the Website. Nothing contained herein shall be construed as conceding any licence or right under any copyright or other intellectual property right.

(k)    The Customer acknowledges that any trademarks or logos which appear on the Website are owned by or licensed to Cellar Link or its associates or related corporations, and that the Customer must not do anything to prejudice the rights of the trade mark owner or licensee to such trademarks or logos.

(l)     The Customer agrees not to:

i.         attempt to access the Website or any of its content if the Customer is under the legal drinking age of the jurisdiction from which the Customer accesses the Website;

ii.        upload, post or otherwise transmit through or to the Website any content that:

iii.        is unlawful, abusive, threatening, harmful, obscene, lewd, offensive, defamatory or otherwise objectionable;

iv.       might infringe the intellectual property rights, privacy rights, rights of publicity, or other proprietary rights of others;

v.        contains any virus, Trojan horse, time bomb, or any other harmful program or element;

vi.       disrupt, place unreasonable burdens or excessive loads on, interfere with or attempt to gain unauthorised access to any portion of the Website, its computer systems, servers or networks;

vii.       provide false information about the Customer to Cellar Link, impersonate any other person, or otherwise attempt to mislead others about the Customer's identity or the origin of any content, message or other communication;

viii.      transmit junk mail, chain letters, or other unsolicited bulk email or duplicative messages;

ix.        collect information about other visitors to Cellar Link website(s) without their consent or otherwise systematically extract data or data fields, including without limitation any financial data or email addresses;

x.         sell access to or the use of the Website, including any content contained on, downloaded or accessed from the Website, except as specifically permitted in writing by Cellar Link;

xi.        redistribute any content, including reviews, provided by Cellar Link in any manner whatsoever including by means of printed publication, fax broadcast, web pages, email, web newsgroups or forums, or any other electronic or paper-based service or method;

(m)  Cellar Link reserves the right to monitor, review, retain, and/or disclose any information necessary to satisfy any applicable law, regulation, legal process or legitimate governmental request.

(n)    By Uploading any Contribution, the Customer represents and warrants that the Customer has the right to Upload that Contribution. The Customer will not Upload any Contribution that the Customer does not have the right to Upload.

(o)    Cellar Link will provide a means by which the Customer may disclose that a Contribution is not a Customer-owned Contribution. The Customer will make all such disclosures appropriately and accurately; in the absence of such disclosure, Cellar Link may rely upon the Customer's warranty that the Contribution is a Customer-owned Contribution.

(p)    The Customer grants Cellar Link an irrevocable, perpetual, worldwide, fully-paid, non-exclusive licence to create derivative works of each Customer-owned Contribution and to use, reproduce, modify, adapt, publish, perform and display the Customer-owned Contribution and its derivative works, so long as the Customer is not identified as the source thereof; provided, however, that if the Customer authorises Cellar Link to identify the Customer as the source, then the Customer will be so identified. The Customer represents and warrants that the Customer has the right to grant the foregoing licence.

(q)    The Customer acknowledges that Cellar Link has no obligation to screen, and does not screen, Contributions when they are Uploaded. Cellar Link, in its sole discretion, may, but will have no obligation to, maintain and utilise Contributions even if the Customer deletes, edits or removes any Contribution, irrespective of whether any user or third party claims that such Contribution violates these Terms or any rights of such user or third party. Cellar Link may, but under these Terms will have no obligation to, investigate any such claim.

(r)     Cellar Link does not monitor or review statements made by persons other than Cellar Link on the Website. Third parties may post statements or information on some portion of the Website from time to time. Cellar Link makes no representations to the Customer in relation to the accuracy, quality, legality, ownership or other aspect of any third party posted material.

(s)    Cellar Link has not reviewed all of the sites that are linked to the Website and is not responsible for the content of any off-site pages or any other sites linked to the Website. The Customer's linking to any other off-site pages or other sites is strictly at the Customer's own risk.

(t)     The Customer agrees that the entire risk arising out of use or performance of the Website lies with the Customer. To the extent permitted by law, the Customer releases and discharges Cellar Link and its associates and related corporations from all forms of direct, special, indirect or consequential loss or damage (including loss of profits, loss of data or loss or damage that may reasonably be supposed to be in the contemplation of the parties at any time) arising out of or in connection with the Website, including, without limitation, loss or damage caused by the negligence of Cellar Link or its associates or related corporations.

(u)    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 are not produced or endorsed by Cellar Link and the Customer’s legal relationship is with the third party supplier.

(v)    Cellar Link does not check, represent nor warrant the accuracy or completeness of the information or the suitability or quality of the products and services of any third parties.

(w)   The Customer must make the Customer’s 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.

(x)    Cellar Link 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. The Customer acknowledges and consents to Cellar Link receiving such fees and/or commissions.

(y)    Cellar Link may add to, delete, or otherwise change any of the terms, conditions, and notices under which the Website is offered, including but not limited to the charges associated with the use of the Website. Cellar Link will notify the Customer of any substantial changes to these terms & conditions as provided in clause 1. The Customer’s use of the Website after notice will constitute the Customer’s deemed acceptance of such changes.

4. Privacy

(a)    The Customer acknowledges that Cellar Link may collect, store, use and disclose information about the Customer for the following purposes:

 i.     performance by Cellar Link of its obligations and enjoyment by Cellar Link of its rights under these Terms;

ii.     (unless the Customer has requested that it not receive such information) to provide the Customer with marketing materials and information about products and services which Cellar Link or any affiliated organisations provide which may be of interest to the Customer;

iii.     complying with Cellar Link's obligations under relevant laws; and

iv.     should Cellar Link (in its discretion) decide to extend credit to the Customer:

v.      to assess an application by the Customer for such credit;

vi.     to notify other credit providers or credit reference agencies of any default by the Customer in complying with the terms upon which such credit is extended; and

vii.     to exchange information with other credit providers as to the status of the credit provided by Cellar Link where the Customer is in default.

(b)    The information which Cellar Link may collect, store, use and disclose can include any information about the Customer's credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act 1988 (Commonwealth).

(c)    Cellar Link will not discuss or amend any of the Customer’s account information or account details nor accept any instruction without prior confirmation of the Customer’s account identification, password and/or other security details (at Cellar Link’s discretion).

(d)    Cellar Link’s Privacy Policy is published at: https://www.cellarlink.com.au/privacy-policy and is updated as required from time to time.

5. Information or advice provided by Cellar Link

5.1 The Customer acknowledges as follows:

(a)    Cellar Link does not warrant the accuracy of information contained in the Product List. The Customer is solely responsible for verifying the details of all Products received from Cellar Link before consuming or otherwise dealing with them.

(b)    Descriptions of third parties’ goods and services included in the Website are accurate to the best of Cellar Link's knowledge, based upon information provided by those third parties. Cellar Link will endeavour to correct errors or omissions as quickly as practicable after being notified of them.

(c)    Cellar Link will use reasonable endeavours to check each Case of Products offered for sale through the Website by third parties to ascertain that the Products concerned correspond with their description.

(d)    Despite paragraphs (b) and (c) of this clause, Cellar Link has no control over, it does not give any warranty or representation in relation to and it disclaims all responsibility for:

i.         the quality, safety or legality of any Product offered for sale through the Website by third parties;

ii.        the truth or accuracy of any listing or description of any Product offered for sale through the Website by third parties; and

iii.       the ability of any third party to sell or any third party’s title to any Product offered for sale through the Website.

(e)    Any information or advice given by Cellar Link by telephone, fax, email, and marketing material or via the Website (including, without limitation, any valuation) was or will be current at the date of posting, but may have become or may become out of date. Any valuation given by Cellar Link is indicative only. Any advice given by Cellar Link about buying Products is purely an opinion and the decision to buy rests solely with the Customer at all times. The Customer can obtain further information about the Products and Services referred to on the Website by telephoning Cellar Link.

(f)     Any information or advice given by Cellar Link by telephone, fax, email, marketing material or via the Website And before acting on the information or advice, the Customer should consider whether it is appropriate to the Customer’s objectives and should consider each Product carefully before deciding whether to acquire the Product.

(g)    Any information on the Website about the taxation consequences of buying Products is general information only; is based on current tax laws as understood by Cellar Link from time to time; is for guidance only; does not constitute tax advice; and should not be relied upon by the Customer.

6. Purchase orders

(a)    A purchase order placed by the Customer, by whatever means, with Cellar Link:

i.         may not be cancelled without Cellar Link's consent in writing; and

ii.        may be wholly or partially accepted or rejected by Cellar Link in its absolute discretion.

(b)    Acceptance of a purchase order by Cellar Link is not effective until it is confirmed by Cellar Link to the Customer in writing, by way of a shipping advice.

(c)    Without limiting clause 6.a, Cellar Link may in its sole discretion reject or elect to partially supply any purchase order placed by the Customer if there is not a sufficient quantity of Products available to Cellar Link or if the terms upon which such Products are available are not acceptable to Cellar Link.

(d)    Subject to clauses 6.a and 6.c, a contract for the sale and purchase of Products offered for sale by Cellar Link or a contract for the supply of Services will come into effect upon receipt by Cellar Link of:

(e)    the Customer’s purchase order; and

(f)    payment for the Products or the Services (as the case may be).

7. Payment

(a)    The price payable by the Customer for any Products or Services ordered by the Customer and supplied by Cellar Link will be:

i.         the price quoted by Cellar Link at the time the Customer places the order; or

ii.         the LIST Price; or

iii.        such other price as Cellar Link may advise to the Customer at or before the time Cellar Link accepts the Customer's order.

(b)    Subscription Fees are invoiced annually in advance and you agree that they are automatically set as recurring for each calendar year and are payable in advance at the time of opening a Cellar Link account. 

(c)    No adjustment is made to Subscription Fees, for any period during a year during which a Service is not used by the Customer.

(d)    The Customer is not entitled to a refund of any fee paid in respect of any period during which a Service is not used by the Customer.

(e)    Payment in full for Products and Services ordered by a Customer, together with any Taxes or expenses payable by the Customer, must accompany the Customer's order and must be made in cash or in such other form as Cellar Link agrees to accept from time to time. Any variation in the price notified by Cellar Link pursuant these terms, will (if a reduction) be refunded by Cellar Link to the Customer at the time the Products or Services are delivered by Cellar Link or (if an increase) must be paid by the Customer to Cellar Link upon notification by Cellar Link.

(f)    The Customer must pay:

(g)     all delivery, storage, insurance, collection, redelivery and other charges in accordance with Cellar Link's Schedule of Fees and Charges; and

(h)    all expenses, including legal fees, incurred by Cellar Link in the enforcement of these Terms and collection of overdue sums due to Cellar Link.

(i)    Unless otherwise agreed by Cellar Link, payment process for all Cellar Link Fees and other fees and charges shall be by Auto pay only.

(j)     The Customer must give notice in writing to Cellar Link before the Customer makes any change to a account debit authorisation, including (without limitation):

i.         any credit, debit or charge card account

(k)     If the Customer gives Cellar Link authority to debit sums due to Cellar Link to the Customer's credit, debit or charge card or bank account, Cellar Link may charge its accounts to the Customer’s credit, debit or charge card or bank account as and when they fall due.

(l)    The Customer is solely responsible for notifying Cellar Link of any alleged error in debiting the Customer’s credit, debit or charge card or bank account.

(m)     May suspend access to your Subscription account

8. Taxes and expenses

(a)    Except as otherwise provided in these Terms, Taxes:

i.         will be borne by Cellar Link, if the price at which Cellar Link supplies a Product or Service is expressed to be inclusive of the particular Taxes; and

ii.         in every other case, must be borne by the Customer.

(b)    The Customer must pay on demand, and must indemnify Cellar Link in full against:

i.          any agent's fees, costs of handling and delivery or other expenses incurred as a result of delivery of any Product to an address other than the Storage Facility; and

ii.         any Taxes which are to be borne by the Customer under clause 8.a, together with any fine, penalty or interest paid or payable by Cellar Link because of a default by the Customer in paying such amounts.

9. GST, WET and Import Duty

(a)    The Customer will notify Cellar Link if the Customer is or is required to be registered for GST and, if so, will provide Cellar Link with the Customer’s Australian Business Number.

(b)    The Customer will notify Cellar Link if the Customer who is registered for GST at the time of each and every purchase intends or may be likely at some point in the future - to on sell the products purchased – therefore conducting a Wholesale Purchase, which will attract additional WET as defined in these terms.

(c)    The customer agrees to indemnify Cellar Link against all costs, including but not limited to the principal WET, legal, enforcement, and interest if as a result of a determination made by the ATO, whereby additional WET is applicable to any particular purchase.

10. Late payment and non-payment

(a)    If any amount is due and payable to Cellar Link by a Customer but remains unpaid, Cellar Link may (without the need for further notice or demand and without prejudice to any other rights or remedies which may be available to it) do any one or more of the following:

i.         charge and recover a late fee;

ii.         charge and recover interest on the outstanding amount, calculated daily at the rate of 1.5% per month;

iii.        off-set the amount owed against any money that Cellar Link owes to the Customer; and

iv.        cancel any outstanding order placed by the Customer and apply any amount paid in respect of such order to the payment of amounts owing to Cellar Link.

(b)    In addition Cellar Link shall have a lien on all Products, any other goods held in the Storage Facility on the Customer's behalf and any document relating to them for all sums payable by the Customer to Cellar Link. If any amount due and payable to Cellar Link by the Customer is not paid in full within six (6) weeks of the due date, Cellar Link may, without further notice, take any or all of the following actions: dispose of and/or sell the Products other goods by public auction or private treaty on such terms as Cellar Link may determine. Cellar Link may also require payment of default action costs, including any costs associated with the seizure of the Customer's Products. Any excess moneys recovered by Cellar Link on disposal will be returned to the Customer.

11. Title and risk

(a)    Title to Products sold by Cellar Link will pass to the Customer when (and only when) all amounts outstanding in respect of the Products and otherwise owing by the Customer to Cellar Link (whether on account of Products, Services or otherwise) have been paid in full to Cellar Link.

(b)    Products sold by Cellar Link will be at the risk of the Customer from the time of actual delivery of the Products to the Customer or of deemed delivery, whichever is earlier. Subject to clause 10, it is the Customer's responsibility to arrange such insurance as the Customer deems necessary or appropriate in the circumstances to protect against loss of or damage to the Products.

12. Insurance

(a)    Cellar Link will ensure that there is in effect at all times a policy of insurance which covers the Products for their replacement or the payment of their cost of replacement (as determined in accordance with the policy) against the risks of physical loss, destruction and damage arising from causes specified in the policy, at all times from actual receipt of the Products into the Storage Facility until they are made available for collection or dispatched in accordance with clause 15. Such policy of insurance:

i.         will be subject to an excess on each and every claim of seven hundred and fifty Australian dollars ($A750.00).

(b)    The liability of Cellar Link to the Customer in respect of any Products insured pursuant to clause 12.a is limited to the proceeds actually recovered by Cellar Link under such policy of insurance, less:

i.         any excess paid or payable by Cellar Link in respect of the claim; and

ii.         any other costs (including, but not limited to, legal and administrative costs) incurred by Cellar Link in making or pursuing such claim, and, in the case of a claim also involving property of a customer or customers of Cellar Link other than the Customer, will be the same proportion of the insurance proceeds recovered (net of the expenses referred to) as the value of the property of the Customer which has been lost, destroyed or damaged bears to the value of all of Cellar Link's customers' property which has been lost, destroyed or damaged.

(c)    Insurance cover arranged by Cellar Link will not indemnify the Customer for loss due to variation in temperature, packing or handling.

(d)    Despite the foregoing, the Customer’s Products will not be insured during any period when any sum payable by the Customer to Cellar Link has not been paid in full by its due date.

13. Delivery of Products purchased on Cellar Link Marketplace

(a)    All Products ordered by the Customer from Cellar Link will be delivered to the Customer’s nominated delivery address.

(b)    Although Cellar Link will make every effort to deliver Products ordered by the Customer in accordance with the Customer's requested date for delivery, or Cellar Link’s indicated date of availability, no warranty is given by Cellar Link that the Products will be delivered on the nominated or any other date. Cellar Link is not liable for any Claim arising from or relating to any delay or failure to deliver any Products.

(c)    If, following acceptance of the Customer's order, any Product specified therein becomes unavailable for any reason, Cellar Link will use its best endeavours to offer an alternative Product to the Customer. Cellar Link will refund to the Customer:

i.         the difference between the amount paid for the unavailable Product and any alternative Product which the Customer agrees to take; or

ii.         the amount paid in respect of the unavailable Product, if the Customer does not choose to purchase the alternative Product. 

(d)    Any additional amount payable in respect of an alternative Product must be paid by the Customer at the time of agreeing to purchase the alternative Product.

(e)   Cellar Link is deemed to have delivered Products when, in the ordinary course of events, the Products would have arrived at the Customer’s nominated delivery address.

(f)    Cellar Link may agree to dispatch the Products (or particular Products specified by the Customer in writing) to the Customer or to an address, on an approximate date and at an approximate time nominated by the Customer in writing, but the costs of so dispatching the Products, and any other expenses of delivery will be the sole responsibility of the Customer.

(g)    Cellar Link is not a common carrier and may at its discretion refuse to transport or carry Products for any person or to transport or carry any class of Products or any particular Product.

(h)    Despite any specific instructions given by the Customer as to the mode of carriage of Products, in the exercise of its absolute discretion Cellar Link may carry Products or have them carried by contractors and by any means.

(i)     Despite the foregoing, Cellar Link shall be entitled to presume that anyone at the address specified for delivery who receives the Products is authorised to receive the Products on the Customer’s behalf. Cellar Link may request that the person who receives the Products provide satisfactory proof of his age. Cellar Link will refuse to deliver the Products if the person receiving the Products is unable or unwilling to provide proof of his age. The Products will not be delivered to persons under the age of eighteen (18) years or to persons who fail to provide proof of age satisfactory to Cellar Link that the person is aged eighteen (18) years or over

(g)    By making Products available to the Customer (or to a person who Cellar Link in good faith believes to be authorised by the Customer to collect the Products) for collection or (if instructed by the Customer) dispatching the Products in accordance with clause 18.3, Cellar Link discharges all of its obligations under this clause 18. Cellar Link is not responsible for any Claim which arises after the Products are made available for collection or dispatched.

(h)    If a consignee named in the Customer's instruction for delivery of Products is not in attendance at the specified address at the time of delivery, Cellar Link will be entitled to charge the Customer an additional charge for each attempted delivery and for the time involved in any delay in effecting delivery and the Customer will pay those charges on demand.

(i)     Charges where applicable shall be considered earned whether or not Products are delivered to any nominated consignee and whether damaged or not. 

14. Returns and refunds

(a)    Cellar Link will endeavour to assess the condition of any Product it sells (including by physical inspection), but Cellar Link cannot know and accepts no liability for the complete provenance of every Product, especially older vintages. If the Customer requests information that Cellar Link has regarding the provenance and condition of Products that Cellar Link sells, Cellar Link will share that information with the Customer. Cellar Link’s Provenance Guarantee only applies to stock originally sourced and supplied from within Cellar Link’s own cellars.

(b)    If the Customer is not satisfied with Products purchased from Cellar Link, or if Cellar Link makes an error with the Customer’s order, the Customer must email Cellar Link immediately at customerservice@cellarlink.com.au explaining the reasons for the Customer’s dissatisfaction. Each situation will be reviewed on an individual basis in light of the facts and circumstances of that case and will be resolved promptly.

i.     All Returns will be at the customers cost and responsibility, Cellar Link will assist where possible

ii.    All returns will only be processed at the nominate Storage Facility as advised by Customer Service

(c)    If Cellar Link requires the Customer to return questionable Products (including both opened and unopened ones) to Cellar Link for evaluation and for possible return to Cellar Link’s supplier, such Products must have the Cellar Link-generated barcode label attached as proof that the Products were supplied by Cellar Link. If (in its sole discretion) Cellar Link accepts responsibility, Cellar Link will either exchange the Products or issue a credit (including return shipping charges) towards future purchases.

(d)    All requests to return products are subject to Cellar Link's investigation, review and final evaluation of the relevant facts and circumstances. Unless otherwise agreed by Cellar Link, only the following reasons for return will be considered:

i.         In regards to wine, if it is deemed to be corked or flawed, providing the wine is returned in its original condition to Cellar Link within 7 days of receipt together with proof of purchase and all remaining bottles of the Product supplied at the same time as the defective product; or

ii.         The wrong product was sent (e.g., different vintage from the one ordered); or

iii.         An error was made during shipment of the product.

 15. Collection of Products from a nominated Storage Facility

(a)    Cellar Link is under no obligation to make Products available for collection from the Storage Facility until the Customer has complied with all these Terms and has paid to Cellar Link all amounts owing to Cellar Link in respect of purchase of the Products, their storage and any other amounts then owing to Cellar Link by the Customer.

(b)    At least 2 Business Days’ notice in writing of collection, specifying the particular Products to be collected, the name of the person/carrier who is to collect them and the date and estimated time for collection, must be given by the Customer to ensure that those Products will be available for collection by or on behalf of the Customer.

(c)    Cellar Link shall not be liable for any failure to carry the Customer’s instructions, nor for any direct or consequential loss or damage whatsoever resulting from such failure, if:

i.         Cellar Link receives less than 2 Business Days’ notice of collection of Products from the Storage Facility or of a request for delivery of Products to another location; or

ii.         Cellar Link is unable to carry out any of the Customer's instructions due to reasons or circumstances outside Cellar Link's control.

16. Limitation of Cellar Link’s liability

(a)    The Customer acknowledges and agrees that Cellar Link is not responsible for, nor liable to the Customer in respect of, any failure to provide the any Service provided through the Website or in respect of any loss or lost profit as a result of any sale or purchase or lost sale or purchase of Products through the Website.

(b)    Except as set out expressly in these terms and conditions, Cellar Link makes or gives no condition, warranty or representation, whether express or implied, arising by statute, common law or otherwise, including but not limited to any implied term, warranty or condition of title, completeness, accuracy, description, satisfactory quality, merchantable quality or fitness for a particular purpose in relation to any other Service provided by Cellar Link, any Product offered for sale or sold through the Website, warranties and terms are hereby expressly excluded.

(c)    Except in relation to such liability as has been expressly excluded, the maximum aggregate liability of Cellar Link whether in contract, tort, statutory duty or otherwise (even where Cellar Link 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/or any purchase effected through the Website 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 $5,000. This limit shall also apply in the event that any exclusion or other provision is held to be invalid for any reason and Cellar Link becomes liable for loss or damage that would otherwise have been limited.

(d)    The Customer acknowledges that Cellar Link supplies the Products and the Services as they are, without making any representation or warranty as to their suitability for any purpose, and that the nature of the Products is such that Cellar Link cannot and does not warrant:

i.         the provenance, quality, drinkability, fitness for use or purpose or freedom from defect or deterioration of the Products, either at the time of delivery or deemed delivery or at the time of collection or dispatch;

ii.         that the Products comply with any description of them in any marketing materials or packaging or the information on any label, or that the Products will comply with any sample.

(e)    Without limiting clause 17.a, and to the fullest extent permitted by law:

i.         Cellar Link expressly excludes all warranties, conditions and representations, whether express or implied, and whether contained in statute or common law. To the extent to which such warranties, conditions and representations cannot be excluded or restricted, these Terms will be read subject to those warranties, conditions and representations;

ii.         subject to clause 12, Cellar Link's liability is limited, at its option:

iii.         in the case of Products – to replacing the Products or resupplying equivalent products, or paying to the Customer the cost of such replacement or resupply; and

iv.         in the case of Services – to supplying the Services again or paying to the Customer the cost of having the Services supplied again.

(f)     Cellar Link shall not in any circumstances be liable for any direct, indirect or consequential loss or damage arising from loss, wastage, spoilage, evaporation, contamination or deterioration of or damage to any Products, the loss of market for any Products, decline in the value of any Products or for any other damages arising from or attributable to any cause, including the wilful or negligent act or omission of Cellar Link. Further, Cellar Link shall not in any circumstances be liable to repurchase the Products or to effect any future sale of the Products.

(g)    Cellar Link shall not be liable in any way to any person for and is expressly released by the Customer from and indemnified by the Customer against any Claim for any loss or damage to the Products arising out of their packing, storage or handling, whether in transit or otherwise, or for any failure to deliver Products at any time or to any place specified by the Customer or at all.

(h)    To the full extent allowable at law Cellar Link shall not be liable in any way to any person for and is expressly released by the Customer from and indemnified by the Customer against any liability arising from any direct or consequential loss suffered by any person arising out of the matters referred to above in clause 15 even where the alleged liability arises out of Cellar Link's negligence, deliberate act or breach of contract.

(i)     If by operation of law, Cellar Link is held liable in any way to any person for any of the matters referred to in clause 15, Cellar Link's liability shall be limited to the market value of the Products as determined by Cellar Link's valuers.

17. Termination

(a)    Once any initial fixed period of service or subscription has ended either party may terminate the parties’ agreement by giving the other party 5 Business Days’ written notice. If the Customer gives less than the requisite amount of notice Cellar Link will be entitled to charge the Customer accordingly.

(b)    In the event of illegal or environmentally harmful activities on the part of the Customer in relation to the use of the Storage Facility or its services, Cellar Link may terminate its obligation immediately and without notice.

(c)    Cellar Link reserves the right to terminate access to Cellar Link services and websites at any time. If this happens Cellar Link will notify the Customer. In such event: (a) the Customer will no longer be authorised to access Cellar Link websites; (b) the Customer will continue to be subject to and bound by all restrictions imposed on the Customer by these Terms; and (c)) all licences granted by the Customer and all disclaimers by Cellar Link and limitations of Cellar Link's liability set out in these Terms or elsewhere on Cellar Link's websites or documentation will survive.

(d)    If the Customer is dissatisfied with any portion of Cellar Link’s Services, or with any of these Terms, the Customer's sole and exclusive remedy is to discontinue using the.

(e)    The Customer must pay all outstanding moneys and expenses owed to Cellar Link up to the date of termination of:

i.         the Customer’s right to use the and to receive other Services; or

ii.        whichever is the later date. Calculation of moneys owed will be made by Cellar Link and such calculation will be final.

(f)     The Customer's liability for outstanding moneys, and legal responsibility under these Terms continues to run beyond the termination of the parties’ agreement.

18. General

(a)    All exclusives, promotions, clearances, offers and discounted items advertised on the Website are available only while stocks last unless otherwise advertised. All terms and conditions of exclusives, promotions, clearances, offers and discounted items advertised on the Website shall apply. Promotions may not be available in all areas.

(b)    Due to liquor licensing restrictions certain Products will not be available for sale in the following areas; South Hedland, Kununarra, Broome, Chinatown, and Seaview. Due to a licensing accord certain Products will be unavailable for purchase during certain times in Kalgoorlie. Cellar Link reserves the right not to sell certain Products to any person to which, or in any location where, the sale of certain Products is restricted or prohibited.

(c)    Neither Cellar Link nor the Customer shall be deemed to be in breach of any of these Terms (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, lockout or other form of industrial action, act of God, war, riot, fire, flood or storm) so long as the party concerned has acted and continues to act reasonably and prudently to prevent and to minimise the effect of such causes.

(d)    Any part of these Terms which is invalid or unenforceable will be read down or severed to the extent of such invalidity or unenforceability, without affecting the remaining provisions.

(e)    Cellar Link may in its discretion sub-contract the performance of any part of its obligations under these Terms and any sub-contractor’s terms of business (including any lien) shall apply as if Cellar Link had entered into the sub-contract as agent of the Customer.

(f)     Cellar Link may in its discretion:

i.         assign and transfer all its rights and obligations under these Terms and/or under any contract with the Customer to any other person who has the resources and expertise to fulfil those obligations and upon that person undertaking to the Customer to perform those obligations, Cellar Link shall be discharged from all further liability to the Customer; or

ii.         offer the Customer the choice of having his contract(s) with Cellar Link transferred to another person in accordance with paragraph

(g) of this clause or removing his wine from the Storage Facility and if the Customer does not remove his wine from the Storage Facility, he shall be deemed to have agreed to have his contract(s) transferred.

(h)    Without derogating from any other method of service allowed by law, any notice, demand or other communication sent to the Customer by post to the last address given to Cellar Link in writing by the Customer shall be deemed to be received by the Customer in the ordinary course of post.

(i)    The Customer may not assign the benefit of these Terms without Cellar Link's prior consent in writing.

(j)     Cellar Link may exercise any and all its rights under these Terms at any time and no failure to exercise or delay in exercising those rights will operate as a waiver those rights.

(k)     These Terms will be governed by the laws of New South Wales and the courts of that state have non-exclusive jurisdiction to hear any matter arising thereunder.

Collector Program Subscription/Membership

  • Each membership is for 365 days
  • Membership is conditional on compliance with the terms specified below, breach of these terms and the standard conditions of trade, will render your membership inactive, and you will forfeit all remaining days on your membership along with all related benefits. You will not be refunded the membership fee
  • Any Subscriber discounts specified are the maximum ‘up to’ price range, but may be less
  • Any offer is made subject to stock remaining unsold
  • Offers may be withdrawn at any time

 Subscriber/Member pricing only available for;

  • online purchases
  • only available to private consumers
  • limited timeframes apply
  • limited stocks will be offered
  • prices may be offered to members for a nominated timeframe only
  • not available for trade (business) purchases
  • products may not be re-sold later under any circumstances (in compliance with the ATO)

 Vouchers / Coupons: 

If Cellar Link issue a buyer a voucher to redeem against the future purchase of wine, the terms and conditions on that voucher apply and bind the holder of the voucher. Vouchers are non-transferable and may not be redeemed for cash.

Each promotional voucher may only be redeemed once per household (residential address). . Vouchers / Coupons may not be used in conjunction with any other vouchers - strict limit of one voucher per order. Unless otherwise stated.

Standard Reward Points / Bonus Reward Points:

 If Cellar Link issue a buyer a set of reward points to redeem against the future purchase of wine, the terms and conditions on that scheme will apply and bind the holder of the points. Reward Points are non-transferable and may not be redeemed for cash.

Where ‘Reward Points’ are issued and nominated to expire on a particular date, you agree to forfeit if you have not used the points. Points will expire as follows, unless the points are granted with a different expiry date – as a special member offer.

  • All Standard Reward Points will Expire 365 days after issued if not used prior
  • All Bonus Points will expire 180 days after issue if not used prior

Special offers: 

At any time, Cellar Link may terminate any special offer without advance notice.

 

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