Terms And Conditions
1. About WineAuctionHouse and these terms
1.1 Wine Auction House Pty Ltd (ACN 129 288 991 ("we", “us” or “our”) provide an Internet based business service (“the Service”) that is intended to facilitate the introduction of people who wish to purchase ("Buyers") goods over the Internet from businesses that use the Service to display their goods for sale (“Sellers”).
1.2 These terms (the “Terms”) govern the relationship between the Seller, the Buyer and us for the use of the Service.
1.3 The Service is provided through websites operated by or on behalf of us under the domain names, wineauctionhouse.com.au, ewinetrading.com, ewinetrading.com.au, ewineauctions.com and ewineauctions.com.au and any new or replacement website through which the Service is provided (the “Websites”). The Terms appearing on the home page of each of the Websites govern the use of the information, graphics and materials on the Websites and information collected by or on behalf of us on the Websites.
1.4 The Seller and the Buyer acknowledge and accept that their use of the Service (whether by the person itself or by any appointee of that person) indicates the person’s acceptance of these Terms (as amended from time to time in accordance with condition 23).
2. Registration
2.1 Before we can agree to provide the Service, the Buyer and the Seller must apply for registration as a member of the Service (“Member”) by completing the registration form on the Website.
2.2 Members must ensure that the Member’s name, address, email address and any other details the Member or its representatives is required to provide to us in relation to the Service are accurate and kept up to date and that the Member promptly makes any changes to these details through the Dashboard.
2.3 In our absolute discretion, we can reject any application for membership.
2.4 Applicants for membership must be over the age of 18 years, and we will reject any application for membership where the applicant or any of its representatives is under the age of 18 years.
3. Operating system requirements
3.1 Members will be responsible for acquiring, maintaining and supporting all equipment, services and software necessary for the Member and the Member's nominated representatives to connect to, and use, the Service at the Member's expense.
3.2 Each Member agrees to comply, and to cause its nominated representatives to comply, with any security or operational procedure which we require users to follow. Any such security or operational procedure will be displayed at the website, and the Member will be notified when new or varied procedures are displayed.
3.3 Each Member will be responsible for the cost of training its employees, contractors, agents and any other person involved in the conduct of the Member's business so as to ensure that those persons are familiar with the Member's obligations under these Terms, and that transactions that are processed through the service are processed in accordance with the Member's obligations under these Terms.
4. Transacting online
4.1 At the end of an auction, the transaction will be completed between the Seller and the highest bidder, subject to the Terms. The Buyer’s contact details registered with the Service are then disclosed to the Seller, and the Seller’s contact details are disclosed to the Buyer.
4.2 The Buyer is required to select their postcode applicable to delivery address. The Service then confirms the postage fee payable in respect to each single transaction as most recently notified to the Service by the Seller in respect of that postcode. The Sellers preferred payment options are then disclosed to the Buyer through the Buyers Dashboard . The Buyer can select and proceed with final payment of the goods (purchase price & postage) using any of the methods of payment listed below (regardless of whether the Seller has nominated such method as its preferred method of payment). The Buyer must confirm the method of payment for the goods including the final purchase price and Lot Number to the Seller. Unless the Buyer and Seller agree otherwise, the Seller may only nominate the following as the required methods for the Buyer to pay the purchase price:
(a) Credit card;
(b) Debit card; or
(c) Electronic funds transfer including, Bank Account Transfer, Paypal, Paymate
(d) Bank Cheque, Personal Cheque or Money Order
(e) Cash on Delivery, Payment on Pick Up
4.3 Once contact details have been provided by the Service in accordance with clause 4.1, all arrangements regarding the payment of the purchase price and the delivery of the Goods are a matter to be agreed between the Buyer and the Seller.
4.4 Bidding on an item indicates the Buyer’s agreement to the terms of sale of that item described by the Seller in the full listing for the item, except where those terms are illegal or in conflict with these Terms.
4.5 When a buyer clicks on the “B I N” button (But It Now) the Buyer is entering into a legally binding contract to purchase the item from the Seller as the highest bidder at the end of an auction (subject to any reserve or minimum bid price selected by the Seller). The Buyer must complete the transaction with the Seller, unless the transaction is illegal in conflict with these Terms (including any rules, guidelines or policies).
4.6 Unless the Buyer fails to meet the terms of sale of the Seller’s item, a legally binding contract exists between the Seller and the Buyer as the highest bidder. The Seller must complete the transaction with the Buyer as at the end of the auction if the highest bid is at or above the stated reserve price (if any).
5. Offer of Goods
5.1 The Seller may only offer Goods using the Service by entering information concerning such Goods (including product number, description, price and attributes) using the Dashboard. The Seller must provide such information to us solely at the Seller's cost, and in such format as we may advise the Seller from time to time.
5.2 The Seller must maintain the accuracy and currency of the information the Seller provides under clause 5.1 at all times while the Seller is displaying Goods for sale using the Service.
6. Price and other expenses
6.1 Any price nominated by the Seller to the Buyer using the Service shall be the price of the Goods offered inclusive of GST (if applicable). The Seller must indicate whether the sale of Goods will be a taxable supply for GST purposes. The Seller must also indicate any other expenses (specifying which expenses) relating to the sale of the Goods that a successful Buyer must pay, including:
(a) any state, federal, local, foreign, or provincial taxes or tariffs applicable to the sale or supply of the Goods and/or Services;
(b) any insurance relating to shipment or delivery of any Goods; or
(c) any other expenses of whatever kind or nature relating to the sale, shipment, transportation, delivery or provision of the Goods concerned, including postage charges.
6.2 Notwithstanding anything else in these Terms or any other purported terms, offer or counter-offer, the Seller must not impose any form of premium (e.g. “buyer’s premium”) in addition to the sale price or hammer price. Any such purported charge or cost will be void as against all parties and is, and will be, severed from the terms of all sales of Goods effected using the Service.
6.3 The Seller must ensure that all Taxes for which the Seller is liable concerning the sale of Goods are paid. In this clause, Tax means:
(a) any tax, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding;
(b) any income, stamp or transaction duty, tax or charge; or
(c) any GST.
6.4 Sellers that are Australian organisations which must maintain registration under the GST Act and hold an Australian Business Number must ensure that invoices to Buyers for Goods and/or Services comply in all respects with the GST Act so as to allow the Buyer to obtain an input tax credit.
7. Fees payable by Seller
7.1 The Seller must pay to us the fees described in the Fees Schedule, in the manner described in that schedule. We may vary the Fees Schedule from time to time without notice to Members. The Fees Schedule will be updated on the Websites as soon as possible following any amendments to the fees payable.
7.2 The fees payable for any supply made under or in connection with these Terms do not include GST. The Seller must pay to us an amount equal to any GST payable in relation to any supply made by us under or in connection with these Terms.
7.3 All fees payable by a Seller in respect of an auction pursuant to the Fees Schedule, including any GST payable pursuant to clause 7.2, must be paid in the manner described in the Fees Schedule.
7.4 When we become aware that there is an adjustment event in relation to a supply which results in the amount of GST on a supply being different from the amount in respect of GST recovered by us, as appropriate, we:
(a) may recover from the Seller the amount by which the amount of GST on the supply exceeds the amount recovered; and
(b) must refund to the Seller the amount by which the amount recovered exceeds the amount of GST on the supply.
8. Parties to Transaction
8.1 Any agreement for the supply of goods is an agreement between the Buyer and Seller only. We are not a party to any such agreement and have no responsibility for payment of the purchase price for the Goods by the Buyer to the Seller, or for delivery of the Goods by the Seller to the Buyer.
8.2 We accept no liability in the event that the Seller does not receive payment of the purchase price, including but not limited to where:
(a) the Buyer fails to make payment in the manner specified by the Seller;
(b) the Seller fails to nominate the required manner of payment;
(c) the bank or other financial institution of the Buyer or Seller fails to process the payment of the purchase price;
(d) the Service does not communicate the purchase price or the required manner of payment to the Buyer; or
(e) any other event or circumstance causes the Seller not to receive the purchase price from the Buyer.
8.3 We will not hold the purchase price at any time, nor will we hold any other amount on behalf of either the Seller or the Buyer. If the Seller does not receive payment of the purchase price, the Seller should deal directly with the Buyer.
8.4 The Seller releases, discharges and shall indemnify us, our servants and agents from and against any and all damage, loss, cost, expense or liability arising or resulting from the Seller not receiving the purchase price from the Buyer.
8.5 We accept no liability in the event that the Buyer does not receive Goods from the Seller, including but not limited to where:
(a) the Seller fails to deliver the Goods in the manner specified by the Buyer;
(b) the Buyer fails to nominate the required manner of delivery;
(c) any agent, contractor or third party engaged by the Seller fails to deliver the Goods to the Buyer;
(d) the Service does not communicate the required manner of delivery to the Seller; or
(e) any other event or circumstance causes the Buyer not to receive the Goods from the Seller.
9. No warranties or guarantees
9.1 Except where expressly stated otherwise, we and our related bodies corporate make no warranties or guarantees in relation to the Service. All terms implied by law, except those that cannot be lawfully excluded, are excluded.
9.2 We do not represent or guarantee that the Service, our Websites, information provided by Sellers, or any website accessible using a hyperlink from our Websites will be free from errors or viruses. We do not represent or guarantee that access to the Service or our Websites will be uninterrupted. Members acknowledge that the Service and Websites may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including without limitation, technical difficulties with the performance or operation of our or another person’s software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures.
10. Limitation of liability
10.1 Subject to condition 11.2, we are not liable to any Member, its servants or agents for any losses, damages, liabilities, claims or expenses whatsoever arising out of or referable to use of the Service or our Websites, whether in contract, in tort (including negligence), under statute or otherwise. We are not liable to the Member, its servants or agents for any losses or expenses related to any interruption of the Member's business arising out of the use by any person of the Service or our Websites.
10.2 Where the law implies any term in these Terms that cannot by law be excluded or modified, then that term is included in these Terms, and our liability for any breach of such an implied term will be limited, at our option, to in the case of the provision of services:
(a) supplying those services again; or
(b) the reasonable cost of supplying those services again.
11. We are not responsible for Sellers
11.1 We do not warrant, endorse, make representations about or recommend any Seller or any of the goods offered or provided by any Seller.
11.2 Any agreement for the supply of goods that is created when the Buyer (by itself or its representatives) agrees to purchase from a Seller using the Service, is an agreement between the Buyer and the Seller only. We are not a party to that agreement and have no responsibility with regard to the goods purchased. If the Buyer has any problem concerning a Seller, or any dispute concerning the goods supplied (whether as to price, quality, fitness for purpose, delivery, quality or quantity or otherwise), the Buyer should deal directly with the Seller. The Buyer releases, discharges, and shall defend, indemnify and hold harmless us, our servants and agents from and against any and all damage, loss, cost, expense or liability incurred by, and/or any claims or demands (including the cost of defending or settling any action, claim or demand) ("Claims") against us its servants or agents arising or resulting from:
(a) the failure by the Buyer to make payment to a Seller;
(b) any dissatisfaction with, or dispute concerning, any goods (including their price and any applicable GST or other tax) of any Seller;
(c) the failure or alleged failure of any goods or services offered or provided by a Seller to satisfy any law, regulation, condition, warranty or other representation (whether such condition warranty or representation is express or implied);
(d) the use of any party of any goods or services supplied through the Service; or
(e) any other controversy or Claim arising between the Buyer and any Seller;
12. Warranty
The Seller specifically warrants that all Goods that the Seller offers for sale through the Service will comply with these Terms.
13. Risk and title
Risk and title in Goods will pass from the Seller to the Buyer at such time and upon such terms as the Buyer and the Seller shall agree.
14. Our obligations
We will use reasonable commercial efforts to ensure the availability of the Service or our Websites, however our liability to any person including any Member for a failure to comply with this condition 15 is limited under conditions 10 and 11.
15. Additional obligations and warranties
15.1 When purchasing Goods from a Seller using the Service, the Buyer must provide us or the Seller with all information we or the Seller require for the processing of the transaction through the Service including information required by the Seller to establish a trading account should the Seller require such an account to be established prior to any order fulfilment (“Customer Information”).
15.2 When using the Service, Members must indemnify us for any loss or damage that we suffer as a result of the breach of these Terms including warranties contained in these Terms by the Member or its representatives.
15.3 In conducting any transaction, Members will, and will procure that their representatives will comply with all applicable laws including all laws relating to the sale, supply and purchase of goods and services.
16. Security and passwords for Members
16.1 The Member agrees that:
(a) the Member will not (and will ensure that the Member’s representatives do not) send or disclose the Member’s password for using the Service to any other person;
(b) the Member will not (and will ensure that the Member’s representatives do not) keep the password in any form, whether encoded or unencoded, in a location where it is capable of being copied or used by any person other than the Member or its representative;
(c) the Member is solely responsible for any loss caused by any use of the Member’s (or any Member’s representative's) password by the Member, its representative or any other person; and
(d) the Member will be responsible for any transactions performed using the Member’s (or any Member representative's) password, including any use not approved or contemplated by the Member, and further that each of the Member’s representatives have read these Terms and are familiar with the Member’s obligations under these Terms.
16.2 If the Member or any of the Member’s representatives suspect someone else knows the password, the Member must change it immediately. If the Member or any of its representatives suspect someone has been using or trying to use their Service login name or password, the Member must inform us. All work done and transactions made under the Member’s login name (including those of any of the Member’s representatives) are the Member’s responsibility. The Member is also responsible for all e-mails sent by any person using the user Member’s login name or any of the Member’s representatives.
17. Period of agreement
The agreement between us and the Member based on these Terms commences on the date we notify the Member that it is registered to use the Service, and continues until terminated under condition 18.
18. Suspension or termination of the Service
18.1 We may withdraw, suspend, terminate or deny access to the Service at any time without prior notice to any Member, and, in addition, may cancel a Member’s password if the Member or any of the Member's nominated representatives:
(a) uses the Service in contravention of the law;
(b) acts fraudulently, or we reasonably consider that their conduct could be fraudulent;
(c) in the capacity of Seller, engages or engaged at any time in vendor bidding, or authorised, permitted, facilitated, acquiesced or approved of a person engaging in conduct that had the purpose or effect of, or is or was likely to have the effect of, vendor bidding for the benefit of the Member;
(d) breach any conditions set out in the Terms;
(e) is suspected or reasonably suspected by an Australian law enforcement agency of committing, or likely to commit an offence; or
(f) obtains, or attempts to obtain, goods or services using the Service by using another person’s payment details (for example, their credit card details).
In that event, we will not be obliged to repay the Member for any fees prepaid under these Terms.
18.2 The Buyer may terminate its involvement in the Service at any time by giving written notice to us in accordance with these Terms and we will deactivate the Buyer's passwords (including those of any of the Buyer's representatives) subsequent to its receipt of the notice under this condition 18.2. Despite the Buyer giving notice to us under this condition 18.2, the Buyer will continue to be responsible for the use of the Buyer's passwords up until the time that we deactivate the Buyer's passwords under this condition 18.2.
18.3 The withdrawal, suspension, termination or denial of the Service does not affect the conditions in the Terms relating to privacy, the Member's obligations to complete transactions, to indemnify us, and the limitations on our liability.
18.4 We may withdraw, suspend, terminate or deny access to the Service, or withdraw, suspend or terminate the Service itself at any time by giving the Member at least seven (7) days' prior written notice to that effect.
19. Privacy
19.1 The Member agrees to us giving information about the Member provided by the Member using the Service to any person, including any of our agents or contractors or any member of our corporate group for the purpose of service provision and management and for marketing (direct and other kinds), planning, risk assessment, product development and research purposes, and any Australian law enforcement agency. The Member acknowledges that this information may include details in these Terms, particulars identifying the Member, details of the Member's (and any Member's representative's) use of the Service and details of the Member's credit worthiness, credit history and credit capacity.
19.2 The Member acknowledges that we may disclose information about the Member and/or the Member's representatives, including Customer Information and other personal information, to Sellers from whom the Buyer or its representatives have ordered Goods.
19.3 Sellers must not collect personal information from Buyers other than for the sole purpose of effecting the sale of Goods using the Service.
20. Jurisdiction
These Terms and the Member's (including any Member’s representative's) use of the Service are governed by, and interpreted in accordance with the laws of, the State of Victoria, Australia. The Member irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia, for determining any dispute concerning these Terms and the Buyer's (including any Member's representative's) use of the Service.
21. Copyright and trade marks
Copyright in material comprising the Service is owned or licensed by us. All rights are reserved. “WineAuctionHouse”, and all associated trade marks, are trade marks of us.
22. Amendment of Terms and entire agreement
22.1 These Terms form the entire agreement between the Member and us relating to the Member's (and any Member's representative's) use of the Service. Other material on the Websites may contain general information about the Service. Unless expressly stated otherwise, this information:
(a) does not constitute an offer or inducement to enter into a legally binding contract; and
(b) does not form part of these Terms.
22.2 The Member must not assign its rights under these Terms. Upon notice to the Member, we may novate or assign our rights and obligations under these Terms.
22.3 These are the current Terms. They replace any other terms of use for the Service. We may at any time vary the Terms. When a variation occurs, we will notify the Member of the variation either by email to the Member's last known email address or by referring the Member to the variation at the time the Member or its nominated representatives next use the Service. We will also publish the varied Terms on the Websites. The Member accepts that by doing this, we have provided the Member with sufficient notice of the variation.
23. General provisions
23.1 We may sub-contract all or any part of its performance of its obligations under the Terms to another suitably qualified person, or third party.
23.2 Any communication or purported communication made by the Member or any person purporting to be the Member or a nominated representative of the Member or to act on the Member's behalf (whether fraudulent or not) can be relied upon by us as if it were given by the Member or with the Member's authority.
23.3 If a provision or any part of the Terms is void or voidable or unenforceable or illegal but would not be void or voidable or unenforceable or illegal if it were read down and it is capable of being read down, it will be read down accordingly.
23.4 Any notice or other communication in connection with these Terms must be:
(a) in legible writing; and
(b) addressed to the party’s address referred to in clause 23.5.
23.5 The contact details of:
(a) the Member is any of those addresses set out the Member’s completed registration form for the Service, as varied by the Member using the Member’s Dashboard from time to time, or any subsequent notice sent to us in accordance with clause 23.4, and may be (in our discretion) any electronic messaging system that forms part of the Service (e.g. where messages may be viewed using the Dashboard); and
(b) us is:
Address:
Attention:
Ph number:
Fax number:
Email Address:
23.6 A notice is regarded as being given by the sender and received by the addressee:
(a) if by personal delivery, when delivered to the addressee;
(b) if by post, on the fifth day after posting;
(c) if by facsimile, on an entry being made in a transmission log kept by the machine from which the facsimile was sent indicates that the facsimile was sent in its entirety to the facsimile number of the addressee;
(d) if by an electronic messaging system that contains a delivery verification function, the generation by the electronic messaging system of a delivery verification notice or log entry, or other confirmation; or
(e) if by electronic messaging system (other than those referred to in condition 23.6(d)) when sent to:
(i) where the addressee is a natural person, the addressee’s email or electronic messaging system account; or
(ii) where the addressee is a corporation, the corporation’s computer systems but, if the delivery or receipt is on a day, which is not a business day or is after 4:00PM (addressee’s time) it is regarded as received at 9:00AM on the following business day.
23.7 A notice transmitted by facsimile, email or other electronic messaging system is regarded as legible unless within 12 hours after transmission is received or regarded as received by the addressee:
(a) gives notice to the sender informing the sender that it is not legible; and
(b) telephones the sender and informs the sender that it is not legible.
For the purposes of condition 23, a notice transmitted by facsimile, email or other electronic messaging system constitutes writing.
23.8 No right or power under the Terms will be taken to be waived except by notice in writing signed by the party entitled to waive such right or power.
23.9 In case of inconsistency between the documents which comprise the Terms, the order of priority is:
(a) these Terms, excluding any documents incorporated by reference; and
(b) the documents incorporated in these Terms by reference.
24. Definitions and interpretation
24.1 Definitions
In these Terms the following words have the following meanings:
Australian Business Number has the same meaning as in A New Tax System (Australian Business Number) Act 1999 (Cth).
Business day means a day that is not a Saturday, a Sunday, a public holiday or a bank holiday in
Customer Information has the meaning set out in condition 15.
Dashboard means that part of the Service where a Member may deal with, and review that Member’s recent activity on, the Service.
Fees Schedule means the Schedule of Fees that we are entitled to charge the Seller in relation to the Seller’s use of the Service, as notified by us to the Seller from time to time.
GST means:
(a) the same as in the GST Act; and
(b) any other goods and services tax, or any tax applying to this transaction in a similar way (including any replacement or subsequent similar tax); and
(c) any additional tax, penalty tax, fine, interest or other charge under a law for such a tax.
Internet means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Nominated Bank Account means an account held by the Seller with an authorised deposit taking institution that accepts electronic transfer of funds from third parties.
password has the meaning set out in condition 16.
Seller has the meaning set out in condition 1.1.
Seller's Catalogue means a descriptive list of the goods and/or services offered by the Seller which is displayed on or through the Service including, but not limited to, details of item number, price, description and availability of the listed goods or services
the Service has the meaning set out in condition 1.1.
Terms means these terms and conditions relating to the Service.
Terms defined in the GST Act have the same meaning in clause 7 unless otherwise suggested, whether expressly or by context.
website means a location accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical user interface.
Websites has the meaning set out in condition 1.3.
World Wide Web means a method of representing and obtaining graphical data and linking items used by Internet users.
24.2 Interpretation
In this Agreement, unless the context requires otherwise:
(a) words importing the singular include the plural and vice versa;
(b) words importing any gender include the other genders;
(c) references to persons include corporations and bodies corporate;
(d) references to a person include the legal personal representatives, successors and permitted assigns of that person;
(e) a reference to legislation includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(f) references to this or any other document include the documents as varied or replaced;
(g) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes telex, facsimile transmissions and electronic mail;
(h) references to mail includes information sent or received by facsimile or electronic transmission;
(i) an obligation imposed on two or more persons shall bind them jointly and severally;
(j) if a word or phrase is defined, cognate words and phrases have corresponding definitions; and
(k) headings are inserted for convenience only and do not affect the interpretation of this Agreement.
