Terms of Use

1. Introduction

WithWine Ltd (ABN 91 168 444 540) (WithWine) is the owner and operator of the internet-based platform (Platform) – WithWine.com.

These Terms of Use are important and govern your use of the Platform. Please read them carefully. By using the Platform you agree to be bound by these Terms of Use. WithWine reserves the right to change these Terms of Use at any time without notice and by using the Platform you agree to be bound by such changes. If you do not agree with the Terms of Use please do not use the Platform.

These Terms of Use do not relate to your use of any product, service, process or technology described on the Platform and you are referred to the individual product warranty relevant to that particular product, service, process or technology.

To report any problems regarding any of the Platform’s components, please contact WithWine at: hello@withwine.com

2. Privacy Policy

The WithWine Privacy Policy is incorporated into and forms part of these Terms of Use.

3. Intellectual Property Rights

WithWine is the owner of all right, title and interest (including present and future copyright) in the Platform.

All material including domain names, names, text, graphics, images, photographs, illustrations, diagrams, logos, buttons, icons, software, and all products, services, processes and technologies described on the Platform (Material) are owned exclusively by WithWine, its related bodies corporate or others who have licensed their material to WithWine (unless expressly indicated otherwise).

For the avoidance of any doubt, the words WithWine and all product and service names, design marks and slogans are the trademarks or service marks of WithWine.

4. Your use of the Platform

You are granted a non-exclusive, non-assignable and non-transferable licence to use this Platform only under these Terms of Use.

You may use the Platform and view and access the Material only for your personal and non-commercial use. Nothing in these Terms of Use or the Platform will be construed as granting to you ownership of the Material or any proprietary right to the copyright, trademarks, patents or other intellectual property rights of WithWine, its related bodies corporate or any third party.

You may not sell, modify, copy, distribute, transmit, display, perform, reproduce, republish, licence, frame, upload, transmit, post, communicate or use the Materials except:

• as expressly authorised either on the Platform or in these Terms of Use; or
• as authorised in writing by WithWine.

You may not use any trademark or service mark appearing on this Platform without the prior written consent of WithWine or the owner of the trademark.

You must not use any so-called spider or similar automated software or device to use or access the Platform or the Materials in any way.

5. Your responsibilities

You may only use the Platform for lawful purposes, in a responsible and co-operative manner, and in accordance with these Terms of Use.

It is your responsibility to ensure that your use of the Platform complies with the Terms of Use and to seek prior written permission from WithWine for any uses not expressly permitted.

WithWine prohibits the use of the Platform, for any of the following:

• Transmitting or posting any message, information, data, text, software or images, or other materials (Content) that is unlawful, harmful, threatening, abusive, harassing, sexually explicit, defamatory, vulgar, obscene, libellous, hateful, racially, ethnically or otherwise objectionable or invasive of another’s right of privacy;
• Impersonating any person or entity or to falsely state or to otherwise misrepresent your affiliation with a person or entity;
• Posting or transmitting any Content that you do not have a right to reproduce, display or transmit or that infringes the rights of any person, or entity;
• Posting or transmitting any Content that contains a virus or corrupted data;
• Using any device, software, or routine that interferes with or attempts to interfere with the proper functionality of the Platform;
• Attempting to decipher, decompile, disassemble or reverse engineer any of the software that makes up the Platform or the Materials or for the purpose of creating derivative works from the Platform.

You will have further responsibilities depending on how you use the Platform.

As a seller of wine (Seller) you may use the Platform to offer and sell wine to buyers (Buyer).

As a Seller of wine:

• You undertake that you have the necessary licence and approvals from your relevant governing body to sell, supply and ship alcohol to users of the Platform and that these licences and approvals are current.  You undertake that your use of the Platform is in no way outside the limitations of your licence or approvals.  You undertake that your use of the Platform will adhere to the requirements and obligations of your licence and approvals and that WithWine is in no way, shape or form, liable or responsible for your failure to meet these requirements and obligations.
• It is your responsibility to ensure that any products listed for sale are in stock. If any products are no longer in stock, it is the responsibility of the seller to immediately mark those products as not available for sale.  Likewise, if you’re doing a club run where your customers can choose what goes into their pack, it is your responsibility to ensure you have enough stock to cover any combination of customer selections;
• It is your responsibility to ensure that products purchased are dispatched to your customers in a reasonable timeframe. WithWine may contact you if we can see that you have not dispatched products in a reasonable timeframe;
• It is your responsibility to issue tax invoices for the items that you sell to your customers;
• It is your responsibility to manage all returns and refunds;
• It is your responsibility to ensure that your own shipping and returns policies are clearly outlined and up to date;
• It is your responsibility to ensure that order and/or shipping statuses are correct and up to date;
• It is your responsibility to adhere to and fulfil your shipping, returns and refunds policies;
• It is your responsibility to communicate directly with the buyer should they have any questions or issues;
• It is your responsibility to ensure that all product images and descriptions are correct and up to date;
• It is your responsibility to ensure that all company, billing and payment details are correct and up to date. WithWine is not responsible for the verification of the bank accounts into which the proceeds from sales that occur on the Platform are paid into; nor is WithWine responsible for the provision of any form of compensation should a user of the Platform enter the banking details of an account that is not the account owned by the billing entity;
• It is your responsibility to ensure that those products listed by you are your original work unless expressly stated;
• It is your responsibility to ensure that you do not take actions that would cause a violation of WithWine's Privacy Policy. You are not to use customer data for any means other than for the purposes in which that data was provided to you.
• You understand that we process card-not-present payments on your behalf and withhold 1.99% (for ENTERPRISE customers) and 2.99% (for POS, POS+ and CLUBS customers) - inc GST - of the total dollar amount processed to cover our payment gateway costs. That includes the cost of the wine you sell and any shipping fees you list. You also understand that in the event of refunding an order for which we processed the payment, the payment processing fee may not be refunded to you as our payment gateway may not refund it to us.  These fees also apply to balances paid for with credit.
• You understand that you are obliged to pay the monthly fee for use of the Platform and late payment beyond our standard terms may incur additional fees.
• You understand that you are liable, for the maximum period permitted by your customers’ financial institutions, for any credit card chargebacks initiated by your customers relating to orders you have fulfilled in the past of any value. You understand that WithWine will invoice you for any debts it incurs as a result of chargebacks initiated by your customers including the total of the chargeback and an administration fee.
• You understand that we do not store your customers’ credit card data.  All credit card data is stored by our nominated payment services provider, Stripe, whose Terms and Conditions can be found (and must be agreed to in order to accept card-not-present transactions using the Platform) in the Company tab within your administration dashboard.
• Should you wish to stop using the Platform our feelings will be hurt deeply but we will respect your decision and do everything we can to ensure you can get on with your life post-break-up. You may export the customer data for those persons who have authorised you to access it.  This includes the names, contact details, shipping addresses and order history of customers and club members; and the names and contact details of current Followers/mailing list subscribers.  As we do not store customer credit card data we cannot provide this to you although we will help facilitate its migration from Stripe.  This can take up considerable time and resources so we may need to invoice you for this work.  All policies relating to your customers’ credit card data are contained within Stripe’s Terms and Conditions.  You will not be able to export customer Try and Like preference data or customer tasting notes.

Any seller determined to have breached any of the outlined responsibilities above may have the services provided to them by WithWine, disabled without warning.

As a Buyer of wine:

• It is your responsibility to ensure that you understand you are entering into an agreement to purchase a product from the seller and not from WithWine;
• It is your responsibility to ensure you have read and accepted the seller’s shipping and returns policies and any other policies or terms outlined by the seller before purchasing a product. WithWine is not responsible in the instance that a seller does not ship an order; does not ship an order within a reasonable timeframe; or ships an order that is incorrect, damaged or incomplete;
• It is your responsibility to ensure you communicate with the seller should you have any product or order enquiries;
• It is your responsibility to engage with the seller before purchase, should you have any questions or concerns about product or seller validity. WithWine is not responsible for the provision of any form of compensation should a buyer purchase an illegitimate product or a product from an illegitimate seller that is not authorised to sell that product;
• It is the responsibility of the buyer to supply correct and up to date delivery information to the Seller;
• You accept that a seller may cancel your order for any reason and that WithWine is not responsible for any disruption this may cause. Should an order be cancelled you will receive a full refund;
• You understand that if you use the platform to buy from a seller, join a seller’s wine club or follow and/or subscribe to a seller’s mailing list that the seller will be able to access your information including name, email address, phone number, shipping address, order history, liked wines and completed tastings.  You also understand that the seller will be able to charge the credit card attached to your WithWine.com account for the purpose of club runs or manual/seller initiated orders requested via phone/fax/email.  You understand that your credit card information is not shared with the seller and that any chargebacks are to be initiated against the seller and not WithWine.

Responsible Service of Alcohol

Under Australian laws, alcoholic beverages can only be sold or supplied to persons aged 18 years of age or over. By opening a WithWine account and/or placing an order you are confirming to us that you are at least 18 years of age. If outside of Australia you must be of legal drinking of your country of residence.

WithWine encourages the responsible consumption of alcohol and also recommends that alcohol only be enjoyed in moderation. 

6. Submissions to WithWine

If you are invited to post Content on the Platform by WithWine, WithWine reserves the right (but assumes no obligation) to remove or amend any such Content. WithWine reserves the right not to accept unsolicited Content or other material.

By submitting any Content to any public or non-public areas of this Platform, you automatically grant WithWine the royalty-free, perpetual, irrevocable, non-exclusive, transferable right and licence to use, reproduce, modify, adapt, publish, distribute, translate, create derivative works from, perform and display such content (in whole or part) worldwide or to incorporate it in other works in any form, media, or technology now known or later developed, without restriction or compensation.

You also warrant that the holder of any rights, including moral rights in such Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant to WithWine the rights and licence stated above. Subject to the foregoing, the owner of such Content placed on our Platform retains any and all rights that may exist in such Content.

7. Career information

WithWine may from time to time request applications from people interested in seeking employment with WithWine. WithWine may not confirm receipt or otherwise respond to an employment application but will endeavour to retain such application for a period of 6 months from the date of receipt. Notwithstanding the previous section titled Submissions to WithWine, WithWine will protect your employment application in accordance with WithWine's Privacy Policy.

8. Usage information

 All usage information displayed on this Platform, if any, is presented in summary form only and is intended to provide a general consumer understanding of the intended operation and benefits of WithWine’s products displayed from time to time on this Platform. 

9. Links and connections to other parties and other sites

The Platform may contain links or other connections to websites operated by parties other than WithWine (Links). These Links are provided for convenience only. If you use a Link to access a third party website, you do so entirely at your own risk. WithWine’s inclusion of Links or other connections to third party websites does not imply any endorsement of the material on them or any association with their owners or operators. Websites accessed via Links may contain advertisements by other people. These advertisements are not recommendations or endorsements by WithWine and WithWine is not responsible for the products and/or services being advertised.

10. Disclaimers, warranty exclusions and limitation of liability

You acknowledge and agree that the use of this Platform is at your sole risk. WithWine makes no representation or warranty:

• as to the availability of any product, good, service, process or technology described on the Platform;
• that the functions contained in the Platform or your access to the Platform will be error-free; 
• that any defects on the Platform or the Materials will be corrected; 
• that any information, apparatus, product, software or process used or disclosed on the Platform or any Material accessible from the Platform will be accurate, up to date, complete or useful; or
• that the Platform or the server which stores and transmits the Material to you are free from viruses or any other harmful components.

To the fullest extent permitted by law, WithWine, its related bodies corporate and their officers, employees, agents and contractors (Group) disclaims all warranties of any kind (whether express or implied) in relation to the Platform and the Material and will not be liable for any direct or indirect damage (including special and/or consequential damage, such as loss of business, loss of profits or loss of data) which results from any use or access of, or any inability to use or access the Platform or the Material even if WithWine or any other member of the Group was made aware of the possibility of such damages.

Without limitation to the foregoing, the Group acknowledges that the laws in certain jurisdictions including Australia may imply warranties and conditions or impose obligations on the supply of goods and services through or by means of the Platform which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to the fullest extent permitted by the law of the relevant jurisdiction and in the case of Australia to the extent permitted by the Trade Practices Act 1974 (Cth), the Group limits its liability and if any liability remains it will be limited to any one or more of the following in its sole discretion:

• in the case of any goods, the replacement or repair of the goods, or the supply of equivalent goods, or the payment of the cost of repairing or replacing the goods or supplying equivalent goods; and

• in the case of any services, the supply of the services again or the payment of the cost of having the services supplied again.

Without limitation to the foregoing, you agree that the liability of WithWine and the Group, if any, arising out of any kind of legal claim or action in any way connected to the Platform or the Material will not exceed the sum of AUD$1.00.

11. Indemnity

You indemnify the Group from and against all claims, actions, liabilities, costs and expenses (including legal costs on a full indemnity basis) resulting from your failure to comply with these Terms of Use.

12. Termination

WithWine may, in its sole discretion and without prior notice to you, terminate your licence to access the Platform and the Materials if you breach these Terms of Use.

13. Agreement

These Terms of Use represent the entire binding agreement between you and WithWine, and our respective successors and assigns, and supersede any and all prior understanding, statements or representations, whether electronic, oral or written, regarding WithWine, the Platform, or the information and contents on the Platform. 

14. Waivers of any obligation or right

No waiver of any obligation or right by WithWine will be effective unless in writing and executed by WithWine.

15. Applicable law

The Platform is controlled by WithWine from its offices in Sydney, Australia. WithWine makes no representation that the Material or the Platform is appropriate or available for use in other locations. Those who chose to access the Platform from locations outside of Australia do so at their own initiative and are responsible for compliance with local laws.

These terms will be governed by and construed in accordance with the laws of New South Wales, Australia and you irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

If any provision in these Terms of Use is found to be invalid or unenforceable by a court of New South Wales, such invalidity or unenforceability will not affect the remainder of these Terms of Use which will continue in full force and effect.

Copyright © 2020. WithWine Ltd. All Rights Reserved.