Terms of Use Agreement
General Terms
1. Access to the Cellartrade website (the “Site”) defined below is provided by Cellartrade. For the purposes of this Agreement, “Cellartrade” shall mean Cellartrade Ltd, Company number 10735606. The “Site” shall mean the website of Cellartrade located at www.cellartrade.co.uk. This Terms of Use Agreement (the “Agreement”) describes your rights and responsibilities and states the terms and conditions under which you may use this website. Please read this document carefully. The term “you” as used herein refers to all individuals and/or entities accessing the Site for any reason. By continuing to use the Site, you are indicating your acceptance to be bound by the terms and conditions of this Agreement between you and Cellartrade. If you do not accept the terms and conditions stated here, Cellartrade is not willing to allow you to use the Site and you should immediately stop using the Site.
2. Cellartrade allows people to offer, sell, and buy wine via direct peer-to-peer auctions. We are not a traditional auctioneer and we are not party to the actual transactions between Buyers and Sellers. We do not routinely review the listings of Sellers and we have no control over, and will not be held responsible for:
a. The truth or accuracy of any auction listings or Seller Reviews;
b. The authenticity, quality, safety or legality of any item advertised;
c. The Seller's title to the goods or ability to deliver them;
d. The Buyer's ability or willingness to complete the transaction;
e. Establishing the identity of a User;
f. The actions or any inactions of any of the Users.
3. You must:
a. Comply with all applicable laws, statutes and regulations regarding your use of our Site and the purchase and sale of alcohol.
b. Be over 18 if operating from within the United Kingdom. If you are operating from outside the United Kingdom you must comply with local laws for the minimum age for buying and selling alcohol.
c. You must have the capacity to form legally binding contracts.
d. If you register as a business you represent that you have the legal capacity to bind that business. If you do not have such capacity you accept that you will become personally liable.
4. You must only buy or sell wine through this Site if you have the legal capacity to do so. The sale and purchase of wine in the United Kingdom is subject to strict legal controls. If you are a holder of the relevant licence, then you may trade within the terms of that licence. If you are a trader who does not hold a licence, there are some circumstances in which you may buy and sell alcohol directly, particularly where wine is held in a licensed bonded warehouse or a sale is made to a trader for the purpose of his trade. These rules are set out in S192 of the Licensing Act 2003 and in the government's guidance on this section (see in particular para 3.2 to 3.5).
5. Cellartrade cannot and does not confirm that each User is who they claim to be. We have however established an online feedback system which allows Users to publish reviews of individual Sellers on the Site. Over time this may help establish reputations for each Seller, but we can offer no guarantees about the veracity or fairness of individual reviews. You should therefore make your own enquiries and if you have any concerns about a Seller you should consider the use of a third party escrow service.
6. You will not hold Cellartrade responsible for other Users' actions or inactions. Because we do not and cannot be involved in User-to-User dealings, in the event that you have a dispute with another User, you release Cellartrade (and our agents and employees) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
7. If Cellartrade wishes to amend this Terms of Use Agreement, we will provide 28 days’ notice via a prominent message on the Site homepage, at the expiry of which the amendments shall automatically become effective.
Registering to Buy Wine
8. You will need to register a User Account with us, and then log in to the Site, before you can place a bid.
9. You must ensure that the personal details and financial information provided by you on initial registration or at any time are correct and complete. You can update your personal details (but not your username) at any time via your Buyer A/c dashboard on the Site.
10. You are specifically forbidden from opening or attempting to open more than one User Account, other than where you are operating separate accounts for your personal and business use. By continuing to use this Site you represent and warrant that:
a. All information you submit is accurate and truthful;
b. You have permission to submit Payment Information where permission may be required;
c. You will keep this information accurate and up-to-date;
d. Your creation of a User Account is further affirmation of your representation and warranty.
11. You should not share your User Account details, particularly your username and password. Cellartrade accepts no liability for any losses or damages incurred as a result of your User Account details being shared by you. If you use a shared computer, you should not save your User Account details in your internet browser. If you have reason to believe that your User Account details have been obtained by another without consent, you should contact Cellartrade immediately to suspend your User Account and cancel any unauthorised purchases that may be pending. In the event that unauthorised use is made of your User Account, Cellartrade accepts no liability or responsibility for that.
Subscribing to Sell Wine
12. To upgrade your User Account to enable selling, you will need to purchase and pay for a Seller Subscription Pack from us before you can list your own auctions on the Site. Payment for your Seller Subscription Pack must be made by debit or credit card through our secure online Worldpay payment gateway.
13. Once purchased, you have a 14 day right to cancel and receive a full refund by emailing contact@cellartrade.co.uk to request this, provided that you have not listed any auctions on the Site. Refunds will be processed within 7 working days. Listing your first auction constitutes a supply of services, after which you lose your right to cancel under The Consumer Contracts Regulations 2013.
14. You can only hold one active Subscription Pack at a time. To upgrade to a higher level Subscription Pack you must first cancel your current Subscription Pack and then purchase the new higher level Subscription Pack. Please note, though, that no partial refunds are provided if you choose to cancel a part-used Subscription Pack in order to upgrade to a higher level Subscription Pack.
Buyer Obligations
15. By bidding on an item you agree to be bound by any specific conditions of sale included in the item's description and also by any general conditions of sale listed in the Terms and Conditions of the individual Seller Profile, so long as these conditions of sale are not in violation of this Agreement or unlawful. As a bidder, if you have the highest bid at the end of the auction, at or above the starting bid price (or in the case of reserve auctions, at or above the reserve price), you are obliged to complete the transaction. Bids are not retractable except in exceptional circumstances such as clear typographical errors, or when you cannot authenticate the identity of the seller.
16. After winning an auction, the Buyer shall submit their Buyer details (name, delivery address etc.) promptly to the Seller via the Site, within a maximum of 4 days from the close of the auction.
17. After receiving an invoice from the Seller, the Buyer shall pay promptly in compliance with the terms and conditions of the individual Seller.
18. It is the Buyer’s responsibility to understand the meaning of the Wine Offer Status of each auction lot sold on the Site, and the corresponding duty and VAT charges that may be applicable in addition to the auction hammer price. If you do not understand the meaning of the term In Bond, you should contact the Seller prior to bidding, so that they can explain the Duty and VAT charges that will be payable if you wish to have the wine delivered to you after winning the auction.
Seller Obligations
19. You must accurately describe your auction lot on the listing page of our Site. All items must be listed in an appropriate wine category. If any of the auction photos you submit are not of the actual bottle(s) for sale, you must make this clear in your auction description.
20. If you receive one or more bids at or above your stated starting price (or in the case of reserve auctions, at or above your reserve price), then you are obliged to complete the transaction with the highest bidder, unless there is an exceptional circumstance, such as:
a. the Buyer fails to meet the terms of your listing (such as payment method), or
b. you cannot authenticate the identity of the Buyer.
21. Upon receipt of Buyer details from a winning bidder, the Seller shall send their invoice promptly to the Buyer via the Site, within a maximum of 3 days from receipt of the Buyer details.
Intellectual Property and Acceptable Use
22. All Content included on the Site, unless uploaded by Users, is the property of Cellartrade. In this Agreement, Content means any text, graphics, images, audio, video, software, data compilations, page layout, underlying code and software and any other form of information capable of being stored in a computer that appears on or forms part of this Website, including any such content uploaded by Users. By continuing to use the Website you acknowledge that such Content is protected by copyright, trademarks, database rights and other intellectual property rights. Nothing on this site shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the site without the owner's prior written permission.
23. You may, for your own personal use only, retrieve, display and view the Content on a computer screen. You must not otherwise reproduce, modify, copy, distribute or use for commercial purposes any Content without the written permission of Cellartrade.
24. You acknowledge that you are responsible for any Content you may submit to the Site, including the legality, reliability, appropriateness, originality and copyright of any such Content. You may not upload to, distribute or otherwise publish through the Site any Content that (i) is confidential, proprietary, false, fraudulent, libellous, defamatory, obscene, threatening, invasive of privacy or publicity rights, infringing on intellectual property rights, abusive, illegal or otherwise objectionable; (ii) may constitute or encourage a criminal offence, violate the rights of any party or otherwise give rise to liability or violate any law; or (iii) may contain software viruses, political campaigning, chain letters, mass mailings, or any form of "spam." You may not use a false email address or other identifying information, impersonate any person or entity or otherwise mislead as to the origin of any content.
25. You represent and warrant that you own or otherwise control all the rights to the Content you post; that the Content is accurate; that use of the Content you supply does not violate any provision of this Agreement and will not cause injury to any person; and that you will indemnify Cellartrade for all claims resulting from Content you supply.
Prohibited Use
26. Cellartrade may refuse our services to anyone at any time, in our sole discretion. You are specifically warned that it is an offence to attempt to buy or sell alcohol without the necessary legal authorisation. It is also a serious offence to attempt to buy or sell alcohol upon which the appropriate duty and taxes have not been paid (except when that alcohol is held in bond or duty suspension). You must not use Cellartrade to send or attempt to send unsolicited commercial communications (spam). You may not add other Cellartrade Users to your mailing list without their consent. You agree to use User information only in accordance with applicable laws and regulations (including, without limitation, data protection laws) and only for Cellartrade transaction related purposes that are not unsolicited commercial communications.
27. Without limiting any other remedies, Cellartrade may suspend or terminate your User Account if we have reasonable grounds to believe that:
a. you have abused our rules in any way; or
b. we are unable to verify or authenticate any information you provide to us; or
c. your actions may cause financial loss or legal liability for you, our Users or Us.
28. Whilst using the Site you will not:
a. manipulate the price of any item or interfere with other Users' listings;
b. circumvent or manipulate Cellartrade's fee structure, the billing process, or fees owed to Cellartrade;
c. take any action that may undermine the Seller Review system (such as displaying Review information on, or exporting Review information to, non-Cellartrade sites, or using it for purposes unrelated to Cellartrade);
d. transfer your Cellartrade account (including Seller Reviews) and User ID to another party without our express consent;
e. collect information about Users, including email addresses, without their express consent.
f. fail to pay for items purchased by you, unless a clear typographical error is made, or you cannot authenticate the Seller's identity;
g. fail to deliver items purchased from you, unless the Buyer fails to meet your listing terms, or you cannot authenticate the Buyer's identity;
h. violate any law, statute or regulation (including, but not limited to, those governing liquor licencing, consumer protection, unfair competition or misleading advertising)
i. attempt to circumvent the Cellartrade system by conducting transactions off the Cellartrade system;
j. use Cellartrade's system or information to send unsolicited emails or other messages except as specifically related to a particular transaction;
k. link directly or indirectly to or include descriptions of goods or services that are prohibited under this Agreement; are identical to other items you have up for auction but are priced lower than your item's reserve or starting bid amount; are concurrently listed for sale on a web site other than Cellartrade's (this does not prevent linking to or advertising an Cellartrade item from another web site);
l. you may not list any item on the Site (or engage in any transaction that was initiated using our service) that, by paying to us the listing fee or the final value fee, could cause us to violate any law, statute or regulation and you agree to indemnify us for any loss suffered as a result of such actions;
m. You may not email bidders in a currently open auction being run by a different Seller, offering similar or the same items at any price level.
n. Shill bidding (when you or someone you know bids to artificially drive the price up) is strictly forbidden. You may not use an alias to place bids on your auction for any reason nor are you allowed to bid on auctions run by family members, housemates, employees or others with whom you have a pre-existing relationship. You may purchase from them via other formats. Breaches of this condition may lead to referral to law enforcement or other authorities.
o. You acknowledge that Cellartrade reserves the right to monitor any and all communications made to us or using our System.
p. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Cellartrade Website or any auction being conducted on it. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose or share your password to any third parties or use your password for any unauthorized purpose.
q. You may not display contact details within your auction listings or use a listing to solicit potential buyers to contact you via any medium other than the Cellartrade site whilst your auction is progress.
International Customers
29. If Goods are being ordered from outside the purchaser's country of residence, import duties and taxes may be incurred once the Goods reach their destination. Cellartrade is not responsible for these charges and we undertake to make no calculations or estimates in this regard. If you are buying internationally, you are advised to contact your local customs authorities for further details on costs and procedures. The purchaser of the Goods will also be the importer of record and as such should ensure that your purchase is in full compliance with the laws of the country into which the Goods are being imported. Please be aware that Goods may be inspected on arrival at port for customs purposes.
30. Where you list wines on the Site and the wines are lying outside the UK (other than in UK bonded storage), this must be explicitly stated within your auction description.
Links to Other Websites
31. This Site may contain links to other websites. Unless expressly stated, these websites are not under the control of Cellartrade. We assume no responsibility for the content of such websites and disclaim liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another site on this Website does not imply any endorsement of the sites themselves or of those in control of them. If you decide to access a linked website, you do so at your own risk.
Links to This Website
32. Those wishing to place a link to this Site on other websites may do so only to the home page of the Site www.cellartrade.co.uk without prior permission. Deep linking (i.e. links to specific pages within the Site) requires the express permission of Cellartrade. To find out more please contact us by email at contact@cellartrade.co.uk.
Commission Fees
33. Our Commission Fees to Sellers are not subject to VAT. Our Commission Rates apply to the auction hammer price only, exclusive of any applicable duty, VAT or delivery charges.
34. Our Commission Rates are as follows:
a. 8% for Bronze Subscription Pack holders
b. 6% for Silver Subscription Pack holders
c. 4% for Gold Subscription Pack holders
35. All Cellartrade fees remain payable whether or not the sale is successfully completed between the Buyer and Seller.
36. Cellartrade requires all Sellers to pay their fees by direct bank transfer, monthly in arrears. On the 1st or 2nd of each month we will email each Seller an invoice for their previous month’s commission fees. Payment terms are strictly 14 days from receipt of invoice. Late payment will result in immediate temporary blocking of new auction listing capability. Auction listing capability will be restored within 72 hours of confirmed payment of overdue fees.
Licence
37. To enable Cellartrade to use the information you supply us with so that we are not violating any rights you might have in that information, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (through multiple tiers) right to exercise the copyright, trade marks, database rights and all other intellectual property rights you have in the content, in any media known now or in the future. In addition, you waive all moral rights you have in the content to the fullest extent permitted by law. (We need these rights to host and display your content.) Cellartrade will only use Your Information in accordance with our Privacy Policy.
Privacy Policy
38. Use of this Site is also governed by our Privacy Policy, which is incorporated into this Terms of Use Agreement by this reference. To view our Privacy Policy, please click here.
Notices
39. Notices to Cellartrade shall be sent by registered mail to Cellartrade Ltd, Kintail, Moor Road, Langham, Colchester, Essex, CO4 5NR. We shall send notices to you by e-mail to the current email address that you have provided to Cellartrade (either during initial registration or as a subsequent update to your User Account details). Notices sent to you by e-mail shall be deemed to have been received by you 24 hours after they are sent, unless we receive notice that the email address is invalid.
Assignment
40. In our sole discretion, we may assign this Terms of Use Agreement to a third party by giving you notice in accordance with the Notices section above (but without your prior express consent), provided that we assign the Agreement on the same terms or terms that are no less advantageous to you.
Limitation of Liability
41. Cellartrade accepts no liability for any direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages arising from the use of this Site or any information contained therein. Users should be aware that they use the Site and its Content at their own risk. In particular (and without prejudice to the foregoing) Cellartrade will not be liable in the following circumstances:
a. In respect of a Seller attempting to sell goods which do not comply with their description;
b. In respect of a Seller who sells or attempts to sell goods upon which the appropriate taxes and duties have not been paid.
c. In respect of Sellers failing to deliver goods.
42. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
43. You and Cellartrade are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. The Site and our services are provided "as is" and without any warranty or condition, express or implied. We specifically disclaim the implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.
44. We make no guarantees as to the identity of any User and cannot accept any liability for losses incurred due to fraud or misrepresentation on the part of any User.
45. Under no circumstances shall we be liable for lost profits or any special, incidental or consequential damages (however arising, including negligence) arising out of or in connection with this Agreement. If, notwithstanding the previous sentence, we are held to be liable, then our liability to you or any third parties in any circumstance is limited to the lesser of:
a. the amount of commission fees you paid to us in the 12 months prior to the action giving rise to liability, and
b. £100.
46. We give no warranty that the Site and our Services will be free of defects and/or faults. To the maximum extent permitted by the law, we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality.
47. Whilst Cellartrade uses reasonable endeavours to ensure that the Site is secure and free of errors, viruses and other malware, we give no warranty or guarantee in that regard and all Users take responsibility for their own security, that of their personal details and their computers.
48. Cellartrade accepts no liability for any disruption or non-availability of the Site.
49. Cellartrade reserves the right to alter, suspend or discontinue any part (or the whole of) the Site including, but not limited to, any products and/or services available. This Agreement shall continue to apply to any modified version of the Site unless it is expressly stated otherwise.
50. You agree to indemnify us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, against any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your breach of any law or the rights of a third party.
Governing Law and Dispute Resolution
51. This Agreement and supplementary agreements shall be governed by and construed in accordance with English law. You and Cellartrade both agree to submit to the exclusive jurisdiction of the UK Courts. If a dispute arises between you and Cellartrade, we strongly encourage you to first seek a resolution by contacting customersupport@cellartrade.co.uk. The parties must attempt to resolve the dispute by means of a mediation conducted by a mediation provider accredited by the Civil Mediation Council prior to any further legal action being taken.
