Conditions of use Cumulus Wines Website
This is the home site of Cumulus Wines Pty Limited ABN 31 00 0 429 550 (“Cumulus”) , owner of Cumulus Wines, Six Hundred Above, JT The Patriarch, Climbing, Rolling, Chasing Clouds, Sixty Spokes, Luna Rosa, Five Friends, Block 50, Beelgara Black, Beelgara Estate, Beelgara Sparkling, Moss Brothers, Em’s Table, White Cliff, Chateau Des Bertrands, Pepperton Estate Two Thumbs, Pepperton Estate, Frog Rock, The Vines, Cockatoo Ridge and The Habitat brands. These Conditions of Use (“Conditions”) govern the use of this and any other Cumulus’ website. Other Cumulus websites include any other site that may from time to time be published by Cumulus, including websites specifically tailored for access by mobile devices (“the websites”).
- Acceptance of these conditions
By accessing and using the websites, you are deemed to have agreed to the Conditions in their entirety. The Conditions may be varied from time to time by Cumulus, and you are deemed to have accepted any variation once it is placed on the website. You should check the site regularly to view the latest version of the Conditions.
- Website Content
Copyright in all materials appearing on this website is, except where noted to the contrary, the property of Cumulus and must not be reproduced, in whole or in part, except as permitted under the Copyright Act 1968 (Cth) or other applicable laws, or for any purpose expressly permitted by Cumulus.
Cumulus does not represent that any information (including any file) obtained from or through this website is free from computer viruses or other faults or defects. It is your responsibility to scan any such information for computer viruses. Cumulus is not liable to you for any loss or damage in relation to any such virus, fault or defect. You agree that the entire risk arising out of installation, downloading, use or performance of the Cumulus websites and material from them remains with you. You also waive any and all claims that you may have against Cumulus otherwise arising out of or in connection with your use of this website.
Cumulus Wines is committed to maintaining the privacy and confidentiality of your personal information. We will adhere to the National Privacy Principles (NPPs) when collecting, using, disclosing, securing and providing access to personal information.
We endeavour to take all reasonable steps to protect your personal data, but cannot guarantee the security of any data you disclose online. By supplying us with information, you accept the inherent security implications of dealing online over the Internet and will agree not to hold Cumulus Wines responsible for any breach of security unless we have been negligent or in wilful default of our duties to you.
- Use of this Website
You must be of legal drinking age to access this website.
a) You may:
(i) view the website; (ii) make a printed copy; and/or (iii) download part or all of the website onto the local hard drive of the computer used to access this site, only for the purposes of personal use, information, research, or study.
(b) Other than as set out in (a) above, you must not reproduce, copy or download any information on the website, without Cumulus’ express written permission.
(c) You must not use the website for any illegal purposes or in a way which is inconsistent with the Conditions.
(d) You access and use the website at your own risk.
- Use of the Cumulus Online Shop
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. If we have reason to believe that a person ordering wine is not 18 years of age or older, we reserve the right to refuse the order.
If you purchase products from Cumulus, you warrant to us that:
• you are over the age of 18 years; and
• any person that you are obtaining the products for, or supply the products to, is over the age of 18 years
The contract between you and Cumulus for the supply of goods purchased from the Online shop (“the Contract”) only comes into existence when Cumulus accepts your order. Cumulus will notify you of acceptance. No obligation to sell the goods will arise until such acceptance. Each order you place will lead to a separate contract.
Anyone at the nominated delivery address who receives the goods shall be presumed by Cumulus to be authorised to receive the goods.
While Cumulus will use all reasonable endeavours to deliver by any requested or agreed date, it does not guarantee delivery on that date and is not liable for any Loss resulting from late delivery.
Risk and title in the goods passes to you upon delivery of the goods to the Delivery Address.
Cumulus’ prices, products, discounts and offers are subject to change and can be withdrawn at any time without notice. The price payable for the goods is the price applicable on the date when Cumulus confirms your order.
Errors and omissions: Occasionally there may be an error or omission related to the pricing or description of the Goods we sell. We will use reasonable endeavours to correct any errors or omissions as soon as practicable after being notified or learning of them. We reserve the right to change, modify, substitute, suspend, or remove without notice any information related to Goods for sale (including the Goods themselves).
- Ownership of material on this website
You acknowledge that all material on the website is owned by Cumulus, or used by Cumulus under licence from third parties. You must not do anything which is inconsistent with these rights of ownership.
In particular, certain trademarks, logos and images (collectively “Images”) appear on this website. These Images belong to Cumulus or third parties to Cumulus and are protected by relevant intellectual property laws. Nothing in the website shall be taken to grant a user any license or right of use or any Images without the express written permission of the owners of those Images.
- You acknowledge that any links to third party websites found on the websites are provided purely for your convenience. The provision of any links shall not be taken as any form of endorsement of third party websites by Cumulus.
- As Cumulus does not own third party websites, it is not responsible for the content, access, reliability, function or condition of third party websites nor is Cumulus liable for any goods and services you may order through third party websites. You access and use third party websites via the Cumulus websites at your own risk.
- Disclaimer and Exclusion of liability for use of website
To the fullest extent possible under the law, Cumulus excludes all implied conditions and warranties in connection with the use of the website or material appearing on the website. Cumulus does not, however, exclude liability which cannot be excluded under the Australian Consumer Law (Cth) or similar state or territory legislation.
(a) Whilst Cumulus endeavours to ensure that information on the website is current and up to date, Cumulus makes no representations and gives no warranties regarding the accuracy, completeness or reliability of any material on the website.
(b) Cumulus gives no warranties or guarantees regarding access to or functionality of the websites and accepts no responsibility or liability for any delays or faults in the operation, function or access to the website.
(c) Cumulus gives no warranty that the websites are free of viruses, or anything else that may interfere with or cause damage to your computer systems. You should take whatever steps are required to protect your own equipment from any potential damage. Furthermore, Cumulus accepts no liability for any loss, damage, harm or claims, howsoever arising, whether direct, indirect or consequential and whether or not due to Cumulus’ negligence, arising out of or in connection with your use of the websites or the material appearing on them.
You agree to indemnify Cumulus and to hold it harmless against all claims, losses, actions, proceedings, cost and damages arising from:
(a) any breach of the Conditions by you;
(b) any reliance by you on any material or information obtained through the Cumulus websites (whether or not the material is obtained via links);
(c) your access to and/or use of the Cumulus websites.
Cumulus Wines reserves the right to disclose information regarding users of the Cumulus Wines service to third parties, provided that the information will not specifically identify you or any personal information supplied by you. We will never sell or trade your personal information to third parties.
Cumulus Wines may give notice to you by electronic mail or by regular mail to your address contained in the registration or other information provided by you.
All specials, promotions, clearances, offers and discounted items advertised on the Cumulus website are available only while stocks last unless otherwise advertised. If any provision of these Terms & Conditions is unenforceable or void either in whole or in part for any reason then that provision (or part) is deemed to be deleted without in any way affecting the validity or enforceability of the remainder of this document.
13. Standard Trading Terms and Conditions
The following terms and conditions apply in relation to goods sold or invoiced by Cumlus Wines Pty Limited (or associated entities)
as the “Supplier”.
(1) In consideration of the Supplier providing the facilities of a commerical credit trading account (“Credit Account”) the Purchaser agrees to be bound by and adhere to these Trading Terms and Conditions and the Guarantee and Indemnity if so required by the Supplier (the receipt of which is hereby acknowledged by the Purchaser).
(2) Payment of all goods supplied by the Supplier to the Purchaser will be due and payable inaccordance with due date on invoice. The Supplier may charge interest of up to 2.5% per month on any amount not paid by the due date.
(3) The Customer will pay any costs and expenses incurred by the Supplier or its solicitors, legal advisers, mercantile agents and others acting on the Supplier’s behalf in respect of anything arising from these Terms or any dealings with the Supplier.
(4) If payments are not made by the due date, the Supplier may withdraw the Credit Account or immediately vary the Trading Terms and Conditions of the Credit Account.
(5) The Supplier may from time to time place a limit on the amount of credit available to the Purchaser at the Supplier’s discretion by providing seven (7) days written notice to the Purchaser.
(6) Any claim by the Customer for short or wrongful delivery of products must be notified to the Supplier in writing within 2 business days of delivery or will be taken to have been absolutely waived.
(7) Subject only to the provisions of any fair trading or consumer rights legislation which necessarily apply to the contract and cannot be excluded, all other implied terms, conditions and warranties are hereby expressly excluded and the Supplier’s liability is limited to:
(a) The cost of replacing the goods; or
b) The cost of obtaining the equivalent goods,
whichever is the lowest amount.
(8) The Purchaser agrees to exchange the Supplier’s pallets that accompany the goods purchased with pallets of an identical brand and condition. In the event that the Purchaser is unable to exchange the said pallets, the Purchaser further agrees to be charged and pay for the cost of the pallets at a rate equivalent to the Supplier’s replacement cost of the said pallets.
(9) Either party, by the giving of reasonable notice in writing, may terminate this Credit Agreement. At termination all monies due by the Purchaser shall become immediately due and payable by the Purchaser
(10) The Purchaser agrees that the prices are subject to change with reasonable notice and are subject to a Goods & Services Tax (G.S.T.) of 10% and a Wine Equalisation Tax (WET) of 29% (unless appropriate quoting form is provided).
(11) The Purchaser will notify the Supplier in writing of any changes in the ownership of or control of the Purchaser within forty eight (48) hours of the change. The Purchaser shall continue to be liable for all monies due on the Credit Account until written notice is received by the Supplier of any changes relating to ownership or control of the Purchaser. Upon receipt of such notice, all monies due by the Purchaser shall become immediately due and payable by the Purchaser unless otherwise notified by the Supplier.
(12) Risk in any products or other equipment supplied to the Customer under these Terms passes to the Customer immediately upon the earlier of the Suppliers ‘s notification upon delivery of the products to the agreed delivery location. Legal and equitable title in the products or equipment is retained by the Supplier until the Supplier receives payment in full. Until title passes, the Customer is authorized to sell the products in the ordinary course of its business.
(13) The Purchaser hereby charges in favour of the Supplier all their estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which they now have any legal or beneficial interest or in which they later acquire any such interest, with payment of all monies owed by the Purchaser. The Purchaser consent to the lodging by the Supplier of a caveat or caveats which note their interest in or over any such land or other caveatable property.
(14) The Customer agrees that the Supplier will have a Purchase Money Security Interest (as defined in the PPSA) in any products or other equipment supplied to the Customer under these Terms or any related order or contract. the Supplier may register any security interest contemplated by these Terms and/or any related order or contract on the PPS Register (as defined in the PPSA). The Customer must supply the Supplier with any information and take any steps the Supplier requires for the purposes of effecting and enforcing such registration. The Customer irrevocably and unconditionally waives its right to receive any notice from the Supplier in connection with the registration. The Customer will not allow a security interest to be created or registered over the products in priority to the security interest held by the Supplier. The Customer agrees that any action taken by the Supplier in relation to the Customer’s security interest in the products is at the cost of the Customer. The parties agree that for the purposes of section 115 of the PPSA, nothing in sections 95, 121(4), 125, 130 (to the extent that it requires the Supplier to give any notice to the Customer), 132(3)(d), 132(4) and 135 of the PPSA will apply to any collateral arising from or in connection with these Terms and/or any related order or contract. Notwithstanding section 275 of the PPSA, the parties further agree to keep confidential the contents of these Terms and related material.
(15) No terms and conditions sought to be imposed by the Customer (ie Customer conditions of purchase) shall apply to the Supplier.
(16) Upon the Customer’s breach or default of any of these Terms, related order or contract with the Supplier , the Supplier may, without prejudice to its other rights; i) retain all monies paid by the Customer; ii) cease further deliveries of products and services, iii) seek to recover from the Customer all direct loss and costs incurred; iv) take possession of any products not fully paid for and; v) otherwise suspend its obligations under or terminate these Terms and/or any related order or contract.
(17) The Customer indemnifies the Supplier against any claim, loss, damage, liability, cost or expense that may be incurred or suffered by the Supplier arising from or in connection with any breach or default of the Customer of these Terms, any related order or contract or the Competition and Consumer Act 2010 (Cth).
(18) The Supplier will not be in default or breach of these Terms or any related order or contract, or will not otherwise be liable to the Customer, for any delay or failure to perform arising from an event of Force Majeure. An event of Force Majeure means an event or cause beyond the reasonable control of the Supplier and includes any strike, lock out or industrial action; acts of God, lightening, storm, explosion, flood, fire, landslide, bush fire or earthquake; act of public enemy, war, terrorism or sabotage; t the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; and embargo, inability to obtain any essential equipment or materials, power or water shortage or lack of transportation.
(19) If the Supplier, in its discretion considers there is a reasonable and valid necessity to vary these Trading Terms and Conditions and/or Guarantee and Indemnity (below) it may do so by giving 7 days notice to the Purchaser in writing. Unless or except specifically excluded herein, the Supplier retains any rights and remedies available to it in any prior of pre-existing agreement. If the Supplier does vary these Trading Terms and Conditions it may not vary any term in a manner that would render the term unfair by law.
(20) Any contract, order or quotation between the parties in relation to the Supplier ‘s supply of any products or services will be deemed to incorporate these Terms by reference, unless the Supplier otherwise agrees in writing.
(21) a) The Supplier provides access to information held by the Supplier in accordance with Privacy legisation.
b) “The Purchaser acknowledges and gives consent that the Supplier may make enquiries as to the credit and financial situation of the Purchaser, including any proprietor, director, trustee and guarantor as permitted by Privacy legislation and further consent to the use of any information obtained as a result of those enquiries, including information disclosed in the Credit Application, for the purposes of assessing this application for creditworthiness or continuing creditworthiness and as the Supplier reasonably sees fit from time to time, for purposes including but not limited to:
• obtaining and exchanging information with a credit reporting agency, credit provider, credit insurer or insurance broker;
• passing the information on to a debt collector or solicitor;
• exchanging further personal information, including consumer and/or commercial credit information, with another body for any use reasonably connected with provision of credit or the collection of debt subject to the provisions of Privacy legisalation; and
acknowledge that the consent hereby given remains in force until all amounts owing in respect of any commercial credit provided are paid in full and the Purchaser no longer has an account with the Supplier.
(21) The Purchaser acknowledges and agrees that these Trading Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Purchaser, unless expressly agreed in writing by the Supplier. Any request from the Purchaser to the Supplier for the supply of goods shall constitute acceptance of these Trading Terms and Conditions.
(22) The Purchaser acknowledges that where the Purchaser consists of more than one party or entity, liability shall be joint and several.
(23) The Supplier is prepared to reasonably negotiate in good faith the Trading Terms and Conditions if the Purchaser contacts the Supplier prior to signing this agreement.