A) These terms govern all dealings with Winescape concerning the Service are binding on Suppliers and Buyers. Winescape recommends that you carefully read these terms before dealing with Winescape as a Supplier or Buyer. Winescape will update these terms from time to time and will not be liable for Supplier or Buyer not being aware of changes to the terms and Conditions. Changes to the User Agreement are current upon publication to the Winescape website.
B) Winescape operates a wine broking business in addition to providing some advertising services for clients in the wine industry. Winescape shall not be responsible for any default by the Supplier or Buyer. Winescape evaluates Product based on it’s experience and expertise.
C) Capitalised terms used thoughout the Terms and Conditions have the meaning given to them in Clause 21 under the heading “Definitions”.
D) If you breach any of these conditions, we may decide not to allow you to use the Service, or claim damages against you. However, we do not intend to act unreasonably.
E) Please note that additional conditions governing the Service and your relationship with us are contained in other Winescape website pages and unless those conditions conflict with these terms and conditions, they will be incorporated into and will form part of the Winescape Terms and Conditions.
1 Conditions of Sale
1.1 The Product the subject of either a Contract Note or a Samples Request (“Product”) is offered for sale by Winescape (“Winescape” or “Broker”) on behalf of the Supplier under the following terms and conditions:
2 Relationship of Parties – Supplier, Buyer, Winescape.
2.1 A Supplier is a party who uses Winescape to sell Product on their behalf for the payment of the Brokerage Fee or Commission. Supplier by action of Uploading provides the Product that is to be sold, including it’s price and description. Winescape retains the right to refuse to deal with Product at it’s complete discretion. A Buyer may request samples of the Product through the Service and Make offers on the same through the service.
2.2 The registered Client (whether Supplier, Buyer or Both) agree’s that all correspondance pertaining to supply of samples and contract negotiation will be through Winescape. On occassion Winescape may waive this right. Buyers agree not to contact Suppliers without express permission from Winescape. Suppliers also agree not to contact Buyers without express permission from Winescape.
2.3 Product must stored by Supplier in appropriate storage and made fully accessible for dispatch and delivery to Buyers upon execution of a Contract Note.
2.4 Listing Product with Winescape is an irrevocable offer to sell such Product save that Product can be withdrawn from sale at no cost to the Supplier at any time prior to the making by or through Winescape of a written offer to prospective Buyers.
3 Registration and use of the Winescape website.
3.1 To become an Approved Buyer or an Approved Supplier or both, details required by Winescape must be entered into the Winescape registration page. Buyers and Suppliers registering with Winescape agree that;
a) All details submitted to Winescape are to the best knowledge of the Buyer or Supplier true and correct at the time of submission. Should at a future date such information change or alter the Buyer or Supplier agrees to notify Winescape directly by either phone or email (as published under “Contact Us” on the Winescape website) when and if the detail provided alters.
b) They are at least 18 years old and have completed all the necessary legal licensing requirements to deal in alcohol. Winescape makes no representations as to the fitness or otherwise of any Buyers or Sellers to deal in Products containing alcohol.
c) The service is provided to Buyer or Seller personally and when using the Service it is in contravention of these Terms and Conditions to resell access to the Service to another person. Passwords should not be disclosed or shared with third parties for any unauthorised purpose.
d) No action will be taken that might interfere with the operation of the Service.
e) No device, software or instruction will be used by Buyer or Supplier to interfere or attempt to interfere with the proper working of the Site.
f) No action will be taken which imposes an unreasonable or disproportionately large burden on the infrastructure of the Service.
g) The Buyer or Supplier is solely responsible for transmissions through the Service. Buyers or Suppliers must;
i) not forge communications or take any other action which would disguise the origin of the communications transmitted by you through the Service;
ii) not allow another person to transmit communications that falsely identifies your account as the origin of such a communication;
iii) not interfere with or disrupt networks connected to the Service;
iv) not use the Service for illegal purposes;
v) comply with all regulations, policies and procedures of networks connected to the Service which either apply by operation of law or are referred to in the Site.
3.2 Without limiting any other remedies available to us, we may suspend or terminate your account if we reasonably suspect that you may have engaged in fraudulent activity in connection with the Site. We reserve the right to determine whether or not your conduct is consistent with the Terms and Conditions and what we believe is good practice for the Site. We may in our sole discretion, immediately terminate your Account and use of the Service if your conduct is deemed by us to be inconsistent with these Terms and Conditions. However, in exercising our rights, we do not intend to act unreasonably.
4 Uploading Product
4.1 Winescape provides a Service for Suppliers to upload Product to sell on the Winescape site. Winescape is not responsible for errors in uploaded data and makes no representations as to it’s authenticity.
5 Ownership of Product
5.1 The Supplier in providing Product to sell through Winescape and to any Buyer of the Product agrees that it is the owner of the Product; and that they can and will give good title thereto; and that the Product is sold free of any encumbrance, mortgage security or lien.
6 Risk of Product
6.1 Save as set out herein, Winescape shall not be responsible to Supplier or Buyer for any other loss, damage, action, cost or expense in respect to the Product.
7 Product Description
7.1 The onus of Product Description is upon the Supplier when Uploading wine to Winescape. Winescape will on occasion alter data uploaded to make it easier for Buyers to locate Product in the Winescape site. During such alterations every attempt will be made to retain accurate descriptions of the Product. However, Winescape does not represent, and denies responsibility for the accuracy of the descriptions, encompassing but not limited to vintage, provenance, authenticity, quality and condition as may be stated on Contract Note, or on the Winescape website (or any accompanying or supporting documentation together with the “Contract Note”). Any and all statements made relating to the Product offered are merely statement of opinion and at no time can be construed as warranties and representations of fact or assumptions of any liability on the behalf of Winescape.
8 Sample Request
8.1 Samples Requests are confidential to;
i) The Buyer sending the Samples Request.
ii) The Seller receiving the Samples Request.
iii) Winescape and it’s employees
8.2 The above holds whether Samples Requests are lodged by phone, email or fax. Any disclosure to parties outside of the aforementioned parties is a contravention of these Terms and Conditions.
8.3 A Supplier receiving a Samples Request through the Winescape website can choose to supply a Sample to the Buyer contained in the Samples Request at their discretion to the delivery address provided by Winescape. In addition to maintaining confidentiality regarding the Sample Request the Supplier agree’s not to contact the Buyer directly in regards to any issues surrounding the supply or rejection of the Sample Request or provide details on the provision of Product (either contained or not contained) on the Winescape site. All such correspondence and negotiation is to go through to the Buyer via the Winescape site or Winescape staff who will transfer information back to the Supplier.
8.4 Buyers of Product listed on Winescape request, receive and evaluate samples at their own risk. Winescape takes no responsibility for differences in or perceived differences between a sample upon which a Contract Note is concluded and the Product delivered by the Supplier as a result of that Contract Note.
9 Contract Notes
9.1 A Contract for Sale and Purchase shall exist between the Buyer and the Supplier at the expiry two working days from i) the date of acceptance by the Supplier of an offer from a Buyer or ii) the date of acceptance by the Buyer of a counter offer made by the Supplier. The terms of the sale shall be contained on the Contract Note.
9.2 Product offered for sale on a Contract Note can not be devided. Should a Buyer wish to purchase less than the full amount of product offered Winescape may, at it’s sole discretion and in negotiation with the Supplier produce a new Contract Note for the lessor amount of Product.
9.3 Buyer accepts all purchases “as is” whether or not any Batch/Sample has been provided or approved by the Buyer. Notwithstanding any other terms of these Conditions of Sale, should Winescape receive any written claims within 21 calender days of that sale that any Product is with shortage, or otherwise out of condition, or that any statement made in the Contract Note is without basis, then Winescape can judge such claims through inspection of the Product or by any other just means, and may recommend to the Supplier to cancel the Sale and refund the purchase price. So far as the law allows, at all times the decision of Winescape will be final and binding on all parties.
9.4 As a Broker, Winescape will at no stage be liable for any deficiency in quality or quantity in respect of the Product. Should any claim or dispute arise which is not able to be settled between the parties in the manner set out herein, the Buyer’s is to the Supplier only, and the Buyer shall not join Winescape in any action for damages or otherwise that may result from such a dispute.
9.5 This indemnity shall extend to Winescape so far as allowed by prevailing law, and shall be restricted only to circumstances of Winescape’s deliberate malfeasance or negligence.
9.6 The sale process is conducted by Winescape as a service and convenience to the Supplier and the Buyer. Neither Winescape nor it’s staff shall be responsible for any failure to execute such sale or any error relating to the same.
9.7 Any offer made by Winescape on behalf of the Supplier shall remain open for 14 days from the date of the offer, thereafter Winescape shall be at the liberty to change any of the terms of offer whatsoever at it’s complete discretion (which shall constitute a new offer, and which shall subsequently be valid for a further 14 days unless).
9.8 NOTWITHSTANDING the terms herein, during the period of validity of any offer, Winescape may withdraw or cancel the offer upon written notification to the Buyer.
10 Payment Terms
10.1 Winescape will notify the Supplier of Buyers acceptance and Supplier will promptly deliver a Tax Invoice for Product sold to the Buyer.
10.2 Winescape will be entitled to simultaneously issue to Supplier a Tax Invoice for it’s Commission, together with any other agreed out of pocket expenses costs and charges. The Supplier must pay Winescape’s Tax Invoice within 7 days of receipt of Buyer’s funds.
11 Winescape Fees
Companies that are registered to Winescape agree to pay commission to Winescape at the following rates;
|Market||Condition of Charge||Commission||Payable by;|
|Fruit||Sale Revenue between $0 – $4999 (exc tax)||7% of sale revenue (exc tax)||Supplier|
|Fruit||Sale Revenue between $5000 – $19,999 (exc tax)||5% of sale revenue (exc tax)||Supplier|
|Fruit||Sale Revenue between $20000 – $29,999 (exc tax)||4% of sale revenue (exc tax)||Supplier|
|Fruit||Sale Revenue above $30,000 (exc tax)||3% of sale revenue (exc tax)||Supplier|
|Bulk||Sale Revenue between $0 – $4999 (exc tax)||7% of sale revenue (exc tax)||Supplier|
|Bulk||Sale Revenue between $5000 – $19999 (exc tax)||5% of sale revenue (exc tax)||Supplier|
|Bulk||Sale Revenue between $20000 – $30000 (exc tax)||4% of sale revenue (exc tax)||Supplier|
|Bulk||Sale Revenue above $30000 (exc tax)||3% of sale revenue (exc tax)||Supplier|
|Bottled||All Sales||10% of sale revenue (exc tax)||Supplier|
12.1 To the extent that the supply of services under this Agreement is a taxable supply the Purchase Price shall be increased by an amount equal to any GST (Product and Services Tax) that the Buyer is liable to pay in respect of that product or supply.
12.2 The Supplier or Buyer’s obligation to pay GST on the Product or Services that are taxable supplies is subject to the provision of a tax invoice for those Product or services.
12.3 Winescape advertised Commission excludes the GST of 10%. Winescape freight, insurance and cellarage charges also attract GST and all prices quoted are also GST inclusive.
12.4 The application of GST can summarized as follows in paragraph 12 and paragraph 13.
13 Trade Supplier (GST registered)
13.1 GST is levied in addition to the Purchase Price, Commission, storage, freight and insurance. The Supplier must remit the GST component of the sale of product to the government and can claim input tax credits on the GST applicable to our fees.
13.2 Trade Suppliers need to supply Winescape with their ABN. It is the responsibility of the Supplier to Winescape of their GST status prior to committing their product to be sold.
14 Trade Buyer (GST registered)
14.1 GST is levied in addition to the Purchase Price. GST registered Trade Buyers can claim the GST input credits for all purchases. Commission, storage, freight and insurance also attract GST. Trade Buyers can claim input credits on the GST applicable to our fees.
14.2 Should the Supplier be a Private Supplier or the Buyer a Private Buyer, the responsibility to GST responsibility to notify Winescape that GST should not apply rests entirely with such Supplier or Buyer. Should not disclosure be made, Winescape is entitled to assume that GST applies to both the buy and sell side of the transaction.
14.3 The expressions “GST”, “Supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Product and Services Tax) Act, 1999, C’th.
15 Wine Equalisation Tax (WET)
15.1 A Buyer agrees to pay WET in addition to GST which will be levied on any invoice from the Supplier to the Buyer unless the Buyer chooses to quote their ABN on an appropriate WET exemption form as provided by the Australian Taxation Office.
16.1 All product will be shipped to the Buyer upon payment and clearance of the Purchase Price and pre-paid shipping charges. All Product shall be delivered by Buyer’s preferred method of shipping or by Winescape’s selection if no Buyer preference is indicated. Unless otherwise specified in the terms of the Contract Note a Buyer shall assume full responsibility for shipping expenses. This includes shipping costs, packing and handling.
16.2 The Buyer is responsible for all duties and customs charges incurred in shipping purchases from the nominated place of dispatch to the Buyer’s desired shipping address. To the extent that Winescape provides estimates of shipping, customs and duty charges, these should be treated as ESTIMATES ONLY. The Buyer is responsible for the actual charges incurred.
16.1 All Product sold through Winescape is insured and at the risk of the Supplier until such time as the Product title transfers from the Supplier to the Buyer as per the agreed conditions of sale as contained on the Contract Note.
18 Dispatch and Delivery
18.1 The primary means of distribution for bulk wine is wine tanker and for bottled wine common carriers. All Product is sold in Australia and title passes to the Buyer in Australia. Winescape makes no representation as to the rights of anyone to import wine into any state or country outside of the Australian state of dispatch.
19.1 Subject to the provisions herin, neither Supplier nor Winescape, its employees or agents shall not be responsible for the correctness of any statement as to authorship, origin, date, age, attribution or provenance of any Product, nor for any other errors of description or for any faults or defects in any lot and no warranty whatsoever is given by the Supplier or Winescape, it’s employees or agents in respect of any Product.
19.2 The only conditions and warranties which are binding on Winescape in respect of the state, quality or conditionof the Product and services supplied by it to Supplier and Buyer and/or in respect of advice, recommendation(s), information or services supplied by Winescape, it’s employees, servants or agents to the Supplier or the Buyer regarding the Product and services, are those imposed and required to be binding by the statute (including the Trade Practices Act 1974) and to the fullest extent permitted thereby the liability (if any) of Winescape arising from the breach of such conditions or warranties shall, at Winescape’s option, be limited to and completely discharged in the case of the Product by either (at Winescape’s sole discretion) the payment by Winescape of the value of the Product as determined by Winescape at it’s sole discretion or the replacement by Winescape of the Product and in the case of advice, recommendation(s), information or services by the supplying by Winescape of the advice, recommendation(s), information or services again and otherwise all other conditions and warranties whether expressed or implied by law in respect of the state, quality or condition of the said Product which may apart from this clause be binding on Winescape are hereby expressly excluded and negatived. Except to the extent provided in this clause, Winescape shall have no liability (including liability in negligence) to any person for any loss or damage consequential or otherwise howsoever suffered or incurred by any such person in relation to the Product and or advice, recommendation(s), information or services and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or in the Product and/or advice, recommendation(s), information or services and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or in the Product and/or advice, recommendation(s), information or services.
19.3 These terms and any contract including them shall be governed by the laws of the State of Australia in which the relevant sale takes place and the parties hereby submit to the non-exclusive jurisdiction of the Courts of that State.
20.1 All communication shall be by notice in writing and sent to Winescape and the Supplier or the Buyer at their addresses, facsimile numbers and email addresses as advised from time to time. A notice shall be deemed received when the sender hand delivers it or (if by fax or email) the receiver receives confirmation of receipt and in any event within 24 hours of sending the notice.
20.2 These Terms and any Contract Note/s evidencing a sale agreement between Buyer and Supplier covers the entire agreement between Winescape and the Supplier or the Buyer relating to the Product and services and there are no agreements understandings warranties or representations between the parties other than those contained herein.
20.3 No waiver or failure or delay to act by Winescape in respect to any default on the part of Buyer or Supplier in the performance of those terms and conditions shall prevent auctioning that or any other default by the Supplier or Buyer.
20.4 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 Supplier or Buyer, they shall be bound jointly and severally.
21 Privacy of Information
It is Winescapes objective to comply with all applicable laws and regulations in a commercially effective way by the adoption of responsible codes of practice. Winescape agree’s to;
a) Collect only that personal information that is necessary for its functions;
b) Use the personal information in a fair and lawful way;
c) Collect personal information directly from an individual or, if it has been collected from someone else, taking reasonable steps to ensure the individual is aware that the information has been collected;
d) Gain consent to collect sensitive information where required;
e) Ensure the individual giving the personal information is aware of why the information is being collected and who else the information may be given to;
f) Only use or disclose the personal information for the primary purpose of collection;
g) Take reasonable steps to ensure the information is accurate, complete and up to date;
h) Take reasonable steps to protect the information held from misuse and loss and from unauthorised access, modification or disclosure;
i) Take reasonable steps to destroy or de-identify personal information if it is no longer required; and
j) Communicate the contents of this policy to its stakeholders and ensuring its associates are kept up to date and comply with the current legislation.
k) Winescape will not provide information that has been uploaded to Winescape to 3rd parties intending to publish the same information via a separate carriage whether that be a website, newsletter or other published item.
“Sale” means the sale of Product by Winescape by way of Contract Note between Buyer and Supplier, incorporating the terms hereof and the commercial and other terms as written on the Contract Note.
“Buyer” means a party buying Product through Winescape.
“Brokerage Fee” or “Commission” means the amount paid by the Supplier to Winescape on the sale of product through Winescape being at the published rate of the Purchase Price of the Product plus GST on that percentage. No commission is payable on unsold product.
“Product” means Product including Bulk wine, Bottled wine or Fruit, offered for sale by Suppliers through Winescape for purchase by Buyers.
“GST” means the Product and Services Tax as defined in A New Tax System (Product
and Services Tax) Act, 1999.
“Cleanskin” or “Cleanskin wine” is a bottled wine with no labels.
“Bulk wine” is wine contained in a vessel or tank.
“Winescape” means “Winescape Pty Ltd” ABN 63360689533.
“Private Buyer” means a Buyer not licenced or authorised to resell liquor.
“Private Supplier” means a Supplier not licenced or authorised to resell liquor.
“Purchase Price” means the price successfully offered by a Buyer and accepted by a Supplier and to be paid by the Buyer for Product offered via Winescape. Purchase Price will include the cost of product as set out in the Contract Note together with any incidental costs for storage, insurance, delivery GST or other taxes or levies that may apply BUT SHALL NOT INCLUDE Winescape’s Commission or Brokerage fee.
“Supplier” means a party selling Product from Winescape through it’s wine broking services.
“Service(s)” means any services offered by Winescape to Supplier or Buyer.
“Terms” means these terms and conditions as amended from time to time.
“WET” means the Wine Equalisation Tax as defined in A New Tax System (Product and Services Tax) Act, 1999.