1. Parties This agreement is between:
a. Flare CreativePty Limited ABN 29 628 832 904 and Secret Bottle Australia Pty Limited ABN 52 603 985 495, holder of Liquor Licence No.LIQP770016868 (us, we, our); and
b. the persons listed or stated in the Order (you, your).
2. This Agreement
a. These Purchase Terms and the Order represent the entire agreement governing your purchase of Products from us (Agreement) and supersedes any previous negotiations, representations, understandings or arrangements, whether oral or in writing.
b. Where an Order consists of multiple Deliveries whether on a single day or over a period of time, this Agreement applies to each Delivery.
a. Including any other right to terminate this Agreement, an Order or Delivery as set out in this Agreement, by giving the other party notice in accordance with clause 11:
i either party may immediately terminate this Agreement:
i if the other party breaches this Agreement; or
ii if the other party is insolvent or bankrupt,
ii if you are a Member, you may cancel your Membership at any time without reason;
iii if you are receiving the Regular Delivery Service, you may cancel it at any time without reason and on cancellation any further Deliveries applicable to that Regular Delivery Service will cease, unless already dispatched for Delivery, and any unused advance payments will be refunded to you; and
i we may cancel this Agreement including any existing Regular Delivery Service and cancel all Deliveries without liability to you:
ii if required to do so by law; iii if you fail to pay the Annual or Monthly Fee when due; or iv without reason and any unused advance payments will be refunded to you.
b. Termination of this Agreement does not affect any accrued rights and liabilities of either party.
4. You must be over 18 years of age
a. It is against the law to sell or supply alcohol to, or to obtain alcohol on behalf of, a person under the age of 18 years.
b. If you purchase Products from us, you warrant to us that: i you are over the age of 18 years; and ii any person that you are obtaining the Products for, or supply the Products to, is over the age of 18 years.
c. We reserve the right to cancel any Order or refuse to supply you with any Products you Order if we are not satisfied you meet the requirements in clause 4.2.
5. Acceptance and filling of Orders
a. Any Order may be accepted or rejected by us in our absolute discretion.
b. We will make reasonable endeavours to fill your Order, however we do not guarantee that Products you request will be available.
c. Unless otherwise agreed we will not provide rainchecks for Goods you Order that are unavailable.
d. If the Goods you request are unavailable:
i we will replace the Goods with other Goods of equivalent value and quality; or
ii you may cancel the Order or return the Goods to us in accordance with clause 14 and we will refund any money you have paid to us in relation to that Order.
6. Representations of Goods
Although we aim to include the most up-to-date pictures of the Goods in our materials and on our Site, pictures are for illustrative purposes only and should not be relied upon.
7. Promotions and Special Offers
a. Any stated terms and conditions of specials, promotions, clearances, offers and discounted items apply in addition to the terms of this Agreement.
b. Any specials, promotions, clearances, special offers or discounted items we advertise or offer to you are available only while stocks last unless we state otherwise.
8. Fees and Charges
a. If you are receiving our Regular Delivery Service:
i the Product Price for Products is the amount applicable on the date we receive your Order; and
ii the Product Price per dozen or half-dozen bottles at the time you agreed to receive our Regular Delivery Service is an average Product Price only and the Product Price for each Delivery will be the amount applicable at the time your Goods are packaged and processed, ready for Delivery; and
iii Secret Bottle reserves the right to change the average Product Price inline with Consumer Price Index (CPI) increases without written notification.
b. Freight Charges are payable in addition to the Product Price.
c. Unless otherwise stated in this Agreement or agreed in writing by us, you must pay us the Total Price including any GST applicable to your Order in accordance with the payment methods, and at the time set out on our invoice, or as otherwise advised when you submit and Order.
d. All transactions a processed in Australian Dollars.
9. Pricing Errors
a. Where we become aware the price of any Goods shown on our Site or in our materials is incorrect by being:
i higher than the correct price we will refund the overpayment to you by providing you with a cheque or crediting any overpaid amounts which may have been debited to your credit or charge card; or
ii lower than the correct price, we reserve the right to not accept such Orders for Goods or cancel the Order even if the Order has been accepted and payment received.
b. Prior to cancelling or rejecting your Order we will contact and offer you the option of amending your Order and proceeding with the purchase of the Goods at the correct price.
c. If you decline to proceed with the purchase of the Goods we will refund any payments to you by providing you with a cheque or crediting any amounts which may have been debited to your credit or charge card.
a. You may become a Member by filling out and submitting a Membership Form. If you become a member, these Purchase Terms apply to you.
b. If you become a Member, you will be required to pay an annual or quarterly Membership Fee every 12 month or 3 month period of your Membership. Your Membership will be automatically renewed every 12 months or 3 month respectively and you will be liable to pay us the Membership Fee.
c. In addition to any Regular Deliveries Service you may select, we may also provide you from time to time with certain membership benefits, such as tasting notes, recipes and exclusive member offers (such as discounts on purchases of wines and special offers from third parties) or other benefits (Member Benefits).
d. We reserve the right to add to, vary substitute, or omit the Member Benefits at any time, in our absolute discretion, and without notice to you.
11. Privacy and Personal Information
a. The personal information we collect from you generally includes your name, address, telephone number/s, email address and information required for order processing and payment. We may also collect information from you concerning your preferred wine type/s or other related products or services.
b. We collect your personal information through a range of sources including the membership form you fill in to become a member, information you provide over the telephone to our sales consultants or member of our customer service team, surveys and questionnaires you complete, and at our related events and functions.
c. We use your personal information to provide products and services and Additional Benefits. If you do not want to receive information from us regarding our products and services or Additional Benefits, please advise us.
12. Freight and Delivery
a. In addition to the Product Price, you must pay the Delivery Fees.
b. The amount of the Delivery Fee may vary depending on the Delivery Address and quantity of Products ordered.
c. Delivery Fees may be calculated on the Site but are subject to change from time to time without notice to you.
d. If the Delivery Address is within our Delivery Area we will arrange delivery of the Goods to the Delivery Address otherwise we will contact you within a reasonable time to discuss alternative arrangements which may include us not accepting your Order.
e. If you change your Delivery Address and the new Delivery Address which you nominate is not in the Delivery Area we will not be obliged to continue to deliver Goods to you but will contact you to discuss alternative arrangements which may include us not accepting your Order or if you have a Regular Delivery Service, us terminating the Regular Delivery Service in which case we will refund any unused portion of any advance payments.
f. If you are receiving a Regular Delivery Service:
i the composition of the Products and the frequency of Deliveries will be determined by the particular Regular Delivery Service you have chosen, however, you may request a change to the composition of Products and the frequency of Deliveries at any time for future Deliveries by giving us notice as set out in clause 18 (subject to any exclusions or limitations that may apply to your particular Regular Delivery Service and which we have informed you of); and
ii you may also request that we cancel a particular Delivery except where the Goods have not already been dispatched.
g. Delivery times vary depending on the Delivery Address. We will use best endeavours to ensure that Goods you Order are delivered to the Delivery Address. However, if our Delivery carriers are unable to deliver the Goods to a Delivery Address you specify (including if there is no-one at the Delivery Address to receive the Goods), our carrier may leave your Goods at the local post office or courier depot and may leave a calling card at the Delivery Address. If a calling card is left at the Delivery Address, you must arrange to collect the Goods from the post office or courier depot (or if applicable, have them re-delivered to your Delivery Address at your cost.
h. Subject to clause 12.11, anyone at the Delivery Address who receives the Goods will be presumed by us to be authorised to receive the Goods on your behalf.
i. We are required by law to give written instructions to the person responsible for delivering the Goods, requiring that the Goods be delivered:
i to the adult person who placed the Order; or
ii in accordance with your instructions, to another adult person at the Delivery Address who can accept the order on your behalf provided they are over the age of 18 years.
j. We may cancel an Order or refuse Delivery and anyone making a Delivery may refuse to deliver the Goods to a person if they fail to provide proof of age satisfactory to us or the person delivering the Goods that the recipient is aged eighteen (18) years or over.
k. Unless otherwise agreed by us, a Delivery will not be made until we receive the Total Payment relating to that Delivery and we reserve the right to cancel any Order or suspend any Delivery if we have not received the Total Payment prior to despatch.
13. Risk and Title
a. Risk in the Goods passes to you upon delivery of the Goods to the Delivery Address.
b. Title in the Goods passes to you on receipt of the Total Price by us.
14. Returns Policy
a. Within 1 month of a Delivery to you, you may return Goods we have delivered to you for any reason in accordance with this section.
b. If you wish to return Goods to us, you must notify our Customer Service department within 30 days of the Delivery and provide us with details of the Delivery.
c. We will accept returns of Goods where the return is of the entire Delivery of Goods in their original condition (i.e. Goods that have not been opened) and retain your Delivery details on the outside of the carton.
d. Where Goods have been opened, damaged, partly consumed, only form part of the entire Delivery or have spoiled, it will be at our absolute discretion whether we will accept return of the Goods.
e. If you notify us and we agree to accept a return of the Goods, we will arrange collection of the Goods from the Delivery Address by a carrier. The carrier will contact you by phone to arrange a mutually convenient time for collection. Provided we can collect the Goods from the Delivery Address, we will bear the cost of any freight charges associated with your return of Goods.
f. If we accept return of the Goods under this clause 14, we will either refund the Product Price to you or provide you with a credit note against future purchases of Goods, which represents that portion of the relevant Delivery being returned.
g. “Tasting Packages”, “Wine In Tube” or "Fine Foods" are not included under this clause 14 and are considered final purchases.
15. Our liability
a. To the fullest extent permitted by law, we exclude all warranties (whether express or implied) in relation to any Products or Additional Benefits, and will not be liable to you for any loss, cost, damage or expense you suffer in connection with or arising from our provision (or failure to provide) the Products or Additional Benefits.
b. We do not make, and have not made any warranty or representation as to the suitability of any Products we supply for any particular purpose.
c. We do not warrant the accuracy of information contained on our Site, catalogues or other materials and recommend that you read the label on Goods carefully before consuming the Goods.
d. To the fullest extent permitted by law, we will not be liable for any loss, damage to property, personal injury or death arising from or in connection with use of any Products by you or any third party. You use the Products at your own risk.
e. We will not be liable for any consequential or indirect loss or loss of profits, opportunity or chance you suffer in connection with this Agreement or any Products used by you.
f. To the extent permitted by law, you agree that our liability arising out of or in connection with any breach of an express or implied warranty or condition of our Agreement is limited to:
i if the condition relates to Goods, the replacement of the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of acquiring equivalent Goods; and
ii if the condition relates to Services, the supplying of the Services again or the payment of the cost of having the Services supplied again.
16. Our brand and brands we sell
a. You acknowledge and agree that any trade marks, logos or copyright materials which appear on our Site, catalogues or other materials produced by us (or on our behalf) and distributed to you are owned by or licensed to us, and that you must not do anything to prejudice our rights or those of the owner in relation to those trade marks, logos or copyright materials.
17. Amendments to this Agreement
We may add to, delete, or otherwise change any of the terms of this Agreement at any time. If we make a substantial change to the terms of this Agreement, we will post the up to date terms (New Terms) on the Site and the New Terms will be effective immediately on posting. You are responsible for monitoring the Site for New Terms. If you do not consent to any New Terms, you must notify us immediately that you terminate this Agreement. Your placement of any further Order or continued use of any Products indicates your acceptance of the New Terms.
18. How to give notice
a. You can give notice to us under this Agreement by telephoning our Customer Service Centre, writing to us at our address as set out on our website, or by emailing us at [email protected] If you write to us the letter or must be clearly legible and signed by you.
b. We can give notice to you by writing to you, telephoning you, emailing you or sending you a fax using the contact details you provide to us from time to time.
c. Any notice sent under this Agreement will be taken to be received by the other party:
i in the case of a letter, on the third business day after the date of posting;
ii in the case of a fax, on production of a transmission report by the machine from which the facsimile was sent which indicates that the fax communication was sent in its entirety to the fax number of the recipient; and
iii if the time of dispatch of a facsimile is not on a business day, or is after 5.00 pm (local time) on a business day, at the commencement of business on the next business day.
a. Any word or provision of this Agreement must be read down, where possible, or severed if this Agreement will be otherwise void, voidable or unenforceable. The remainder of this Agreement has full effect.
b. We do not waive a right or remedy created by this Agreement except we give you a written, signed waiver. Any delay in exercising our rights or remedies is not a waiver of those rights or remedies, nor does our waiver (either wholly or in part) of a right operate as a subsequent waiver of the same right or of any other right we have.
c. You must not assign, sell or transfer your interest under this Agreement. We may, in our discretion, assign, sell or transfer our interest in this Agreement by notice in writing to you.
d. The laws of New South Wales govern this Agreement and each party submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.
20. Regular Delivery Service
a. Unless you terminate this Agreement as permitted herein, if you Order a Regular Delivery Service, the minimum term will be 3 months or 12 months and will be automatically renewed at the end of each 3 month or 12 month period for a further term of 3 months or 12 months respectively, subject to payment of any renewal fee.
In these Purchase Terms:
• Authority means any government, semi governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, public or other person.
• Delivery means any delivery of Goods to you requested in an Order.
• Delivery Address means:
1. for deliveries to metropolitan areas, the delivery address you specify on the Order (or as notified by you from time to time); or
2. for deliveries to regional areas, the nearest Post Office to the delivery address you specify on the Order.
• Delivery Area means any area(s) we nominate for which we will arrange Delivery but excludes areas that are classified by an Authority as alcohol-free zones.
• Delivery Charges means fees plus any GST for the freighting and delivery of any Products to you.
• Goods means wine and alcoholic beverages and any other goods we supply to you from time to time, including any goods supplied as part of the Additional Benefits.
• Member means any person who:
1. is accepted as a member by us after receiving a completed membership form; and
2. has paid the Membership Fee. Membership Fee means the non-refundable fee payable by you to become Member. Membership Form means the form submitted by prospective members to us either online, at a sales kiosk or with one of our sales representatives.
• Order means any oral or written request that You give to us and which is accepted by us, to supply you with Products, including any order for a Regular Delivery Service, which is given via the following approved mediums:
1. the Site;
2. by telephone at1300 520 357 (or such other telephone number we have notified to you);
3. by regular mail to Flare Creative Suite 6.01, Level 6/201 Kent Street, Sydney NSW 2000; or
4. in person at a Sales Kiosk.
• Product Price means the price of Products you Order, including GST but excluding Delivery Charges unless otherwise stated.
• Products means any Goods and Services as the context dictates
• Regular Delivery Service means any package or arrangement offered by us to Members from time to time which consists of the periodical Delivery of Goods over a period of time and which has been selected by you and specified in your Order.
• Sales Kiosk means a Drinks With Dave branded retail kiosk.
• Services means any services we supply to you, including any services supplied as part of the Additional Benefits.
• Site means www.drinkswithdave.com.au
• Total Price means the Product Price plus the Delivery Charges.