Distinct Drinks Pty Ltd ACN 642 821 798
1. IMPORTANT NOTICE
1.1 Distinct Drinks Pty Ltd ACN 642 821 798 trading as Distinct Drinks (‘Distinct Drinks’, ‘us’ or ‘we’) supports the responsible service of alcohol. It is an offence for a person under the age of 18 years of age to falsely represent themselves to be of, or over 18 years of age. We reserve the right to refuse to enter into an agreement or accept an Order or to serve, sell or supply Products to any person we suspect to be under 18 years of age, or who is unable to satisfy us that they are 18 years of age or over, or who we reasonably suspect is going to supply alcohol to a person under 18 years of age.
1.2 By registering an account with us, you acknowledge and agree that you understand the prohibition on the sale and supply of liquor to minors and you confirm that you are at least 18 years of age.
2.1 In these Terms and Conditions of Trade, the following words have the following meanings:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Bulk Orders means Orders exceeding three (3) bottles of liquor;
Claims means, in relation to a person, any claim, cause of action, proceeding, suit or demand made against the person concerned however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Copyright Material means any work or other subject-matter in which copyright subsists or is capable of subsisting under the Copyright Act 1968 (Cth) or equivalent legislation.
Corporations Act means the Corporations Act 2001 (Cth).
Delivery Areas means all areas within New South Wales but specifically excluding the Non-delivery Areas.
ETA means the Electronic Transactions Act (Queensland) 2001 (Qld).
Force Majeure Event means any occurrence or omission outside of a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes:
- a physical natural disaster including fire, flood, lightning or earthquake;
- riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or government declaration or direction;
- epidemic, pandemic or quarantine restriction;
- supply shortage or strike, lock out, stoppage, labour dispute or shortage including industrial disputes involving any of our suppliers.
Government Agency means:
- a government or government department or other body;
- a government, semi-government or judicial person; or
- a person (whether anonymous or not) who is charged with the administration of the Law.
Insolvency Event means, for a person:
- being in liquidation or provisional liquidation or under administration;
- having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property;
- being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
- being unable to pay its debts as and when they fall due otherwise being insolvent;
- ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason;
- taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act); or
- entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.
Intellectual Property Rights means any and all beneficial and legal ownership and intellectual and industrial protection rights throughout the world, both present and future, including rights in respect of or in connection with any Copyright Material (including future copyright and rights in the nature of or analogous to copyright), Moral Rights, inventions (including patents), trade marks, service marks, designs, circuit layouts and performance protection (whether or not now existing and whether or not registered or registrable) and includes any affairs; right to apply for the registration of such right and all renewals and extensions.
Law means any law, whether statute or common law (including the laws of negligence and nuisance), ordinance, regulation, by-law, order or other determination of any Government Authority.
Liability means Claims, Losses, liabilities, costs (including but not limited to legal costs), damage or expenses of any kind and however arising, including penalties, fines and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
Liquor Licensing Act means the Liquor Act 2007 (NSW) and the Liquor Administration Act 2007 (NSW) as amended from time to time.
Loss includes any loss, damage, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Moral Rights has the same meaning as in Divisions 2, 3 and/or 4 of Part IX of the Copyright Act 1968 (Cth).
Non-delivery Areas means areas which fall within the following post codes, noting that such areas may be subject to change in accordance with relevant legislation and regulations;
All post codes
5723, 5734, 5680, 5690
4605, 4713, 4803, 4816, 4825, 4830, 4871, 4874, 4876, 4892, 4895
6431, 6435, 6436, 6437, 6438, 6440, 6635, 6638, 6639, 6640, 6642, 6642, 6710, 6713, 6714, 6716, 6718, 6721, 6722, 6751, 6754, 6758, 6798, 6799, 6770, 6765, 6718, 6723, 6725, 6726, 6728, 6731, 6733, 6740, 6743, 6753, 6761, 6765, 6770, 6430
Order Form means the order form generated within the Website to collect the details of your Order.
Original Products means a product advertised on our Website for sale in the form in which it was received by us from our supplier.
Payment Methods means payment by credit card or electronic funds transfer.
Products means those products advertised for sale on our Website from time to time.
Services means those labelling and product personalisation services advertised for sale on our Website from time to time.
3.1 This Website allows customers to browse, select and order Products and Services from us.
3.2 Your use of the Website, your creation of an account with us and your ordering of Products and Services from us is governed by:
- These Terms and Conditions Trade;
- Please read these Terms and Conditions of Trade carefully as your creation of an Account with us and your ordering of Products and Services through this Website is subject to these Terms and Conditions of Trade (‘Terms’).
- By registering your account with us or placing Orders for Products and Services through the Website, you agree that you will be bound by and comply with these Terms.
4. REGISTRATION OF ACCOUNT
4.2 You may not have more than one active account at any one time, and your account is non transferable. You may update, edit or terminate your account at any time through the Website.
5. PLACING ORDERS FOR PRODUCTS AND SERVICES
5.1 With the exception of Bulk Orders, you may order Products and Services by selecting and submitting your order through the Website in accordance with these Terms (‘Order’).
5.2 Any Order placed through this Website for a Product or Service is an offer by you to purchase the particular Product or Service for the price notified (including any charges and taxes) at the time you place the Order.
5.3 We may ask you to provide additional details or require you to confirm your details to enable us to process any Orders placed through the Website.
5.4 You agree that all information provided by you to us, including but not limited to when you place an Order, is current, complete and accurate and not in any way misleading.
6. ACCEPTANCE OR REJECTION OF AN ORDER
6.1 We reserve the right to accept or reject your Order for any reason, which includes (but is not limited to) an election to cancel your order in accordance with clause 13.
6.2 Each Order placed through the Website which we accept results in a separate binding agreement between you and us for the supply of the relevant Products or Services. The agreement for each Order accepted by us will only be created when accepted at one of our licensed premises and will be in accordance with these Terms.
7. AVAILABILITY OF PRODUCTS AND SERVICES
7.1 If we are unable to supply the Products or Services the subject of your Order, we will notify you as soon as reasonably practicable.
7.2 To the extent permitted by Law (including the Australian Consumer Law), you acknowledge and accept that the Products displayed on the Website (including the images and description of the Products displayed on the Website) may occasionally differ from the Products delivered, due to changes in the manufacturer’s packaging and descriptions.
8. PERSONALISED LABELLING AND MESSAGES
8.1 Purchase of Personalised Product
- As part of our Product and Service offerings, we provide a personalised labelling and message service for the Products (‘Personalised Products’).
- Where you purchase Personalised Products, the title to the relevant Personalised Products will pass to you on completion of the purchase.
- By purchasing a Personalised Product, you acknowledge and warrant to us:
- that we sold the Original Products to you intact with branded labels, duty stamps, barcodes and capsules (‘Branded Labels’) as per the representative images on our Website;
- You, as the legal owner of the relevant Personalised Product, have requested that we add your requested image or personalised text to the Original Product;
- You provide your explicit permission and consent for us to remove any Branded Labels on the Original Product as required to give effect to the specifications of your Order
8.2 Limitations as to Personalised Products
(a) As far as is reasonably practicable, all personalised messages and labelling will mirror the words requested by you in the Order Form on the Website. However, any Order which includes a request for personalised messages, text or images which:
- Purport to increase the value of the Product, including but not limited to by the inclusion of references such as ‘vintage’, ‘limited edition’ or ‘collectable’;
- Purport to include trademarks or slogans;
- Is unlawful or in breach of any Law;
- Are likely to infringe upon another person’s Intellectual Property Rights;
- Are offensive in any manner (as determined in our sole discretion); or
- Contain expletives,
will be rejected (or, in the case of expletives, may (at our sole discretion) be altered so as to obscure the expletive) and we will not be required to provide you with any justification or reasoning with respect to our rejection of an Order or our alteration of the relevant message, text or image forming part of the Order.
8.3 Requests for changes or corrections to Personalised Product
(a) We are not liable for any errors, spelling mistakes or grammatical errors you have made in placing your Order. If you discover that you have made an error in the text or message you have submitted to us, and provided we have not yet completed your Order, we will (without providing any guarantee as to our ability to do so), upon receiving notification from you, attempt to help you resolve the matter to the best of our ability.
8.4 Warranty and indemnity as to text, messages and images submitted
- By placing an Order with us for a Personalised Product, you warrant and guarantee that the text, message or image you have requested as part of your Order:
- does not violate any right of any third-party, including (but not limited to) Intellectual Property Rights, privacy rights or any other personal or proprietary right; and
- is not defamatory or likely to defame any party.
- Where your Order includes the use of an image, you further warrant and guarantee to us that you are the owner of the image or that you have explicit permission from the owner of the image, for the reproduction of the image.
- You acknowledge and agree that we have relied upon your warranty as given in this clause 8.4 in determining whether to accept and fill your Order.
- Without limiting any other provision of these Terms, you acknowledge and agree that you are responsible for and indemnify us and will keep us indemnified against any Liability we incur in connection with your breach of clauses 8.4(a) and 8.4(b) above.
9. RESTRICTIONS ON PURCHASE OF PRODUCTS AND PERSONALISED PRODUCTS
9.1 All Orders that we accept for Products and Personalised Products are only accepted, processed and distributed by us from one of our licensed premises. The Orders and any acceptance or agreement are subject to our obligations under the Liquor Licensing Act to comply with responsible service of alcohol obligations.
- acknowledge that it is against the Law to sell or supply alcohol products to, or obtain alcohol products on behalf of, a person under the age of 18 years; and
- warrant that you are over 18 years of age and are not obtaining alcohol (including liquor products) on behalf of a person under the age of 18 years.
- You acknowledge and agree that you are not permitted to purchase any items for resale to a third party or for trade purposes. If we have a concern with the quantity of item/s you have ordered, then we may contact you when you place the Order or within a reasonable time after you submit your Order and/or we may reduce the size of the Order or reject your Order in its entirety.
- Unless otherwise indicated on our Website and otherwise subject to our obligations under all relevant Laws, you may order a maximum amount of three (3) bottles per Order.
- If we reasonably believe that you are placing multiple Orders, whether under the same or different account registration details, for the purposes of circumventing the Order limits contained at clause 9.4 above, all such Orders may be cancelled by us without notice to you.
10. BILLING AND PAYMENT
10.1 Payment for each Product must be made in full via the Payment Methods prior to an Order being dispatched. Orders will not be dispatched until payment for the relevant Products has been received in full and clear funds.
10.2 All payments and refunds will be made in AUD ($). Any refunded value may differentiate depending on the exchange rate applied at the time of processing the payment.
11.1 Delivery of Products
- We deliver Products purchased through our Website to the Delivery Areas.
- We will process your Order upon receipt of payment, and send the Products the subject of your Order via Australia Post or a reputable courier company.
- Delivery times will depend on your chosen delivery option (i.e. express or standard post).
- Please note that delivery time-frames provided are estimates only and may vary (usually due to circumstances beyond our control. We endeavour to deliver Orders as close to the estimated time-frame as possible but cannot guarantee this. For further details regarding our delivery service, including time-frames and areas, please see our Delivery Policy.
11.2 Delivery requirements
(a) By placing your Order with us, you agree to comply with the following delivery requirements:
- Products will only be delivered to the person named on the Order or a person who is at the address you have nominated for delivery provided that person is over the age of 18. In any case, the person taking delivery may be required to provide proof of identity (including photographic identification and date of birth).
- We will not deliver a Product:
- If there is no-one at the nominated address; or
- to a person who is below the age of 18 or to a person who appears to be under the age of 25 and who cannot provide proof of age; or
- to a person who appears intoxicated; or
- if our delivery driver is concerned that minors are present in the vicinity of the nominated address without adequate supervision.
(iii) If we are unable to effect delivery for any of the above reasons:
- Your delivery may be taken to an Australia Post branch for subsequent collection where Australia Post will verify your identity before your Order is released to you; or
- Your Order will be returned to us and we will endeavour to contact you to arrange a new delivery date and time. You may be charged an additional fee for this service.
- If you are ordering Product for delivery to South Australia, you agree that:
(A) on delivery, the recipient of delivery will be required to:
- sign a declaration confirming their name and that they are over 18 years of age;
- if the recipient looks under 25 (at our discretion), provide proof of ID (including photographic identification and date of birth) and the name and date of birth of the recipient will be recorded;
- we are instructed to deliver the Product to a person at the delivery address provided the provisions of clause 11.2(a)(ii) do not apply.
- Information collected and recorded under this clause will be held for a minimum of 12 months. These are requirements of South Australia's Liquor Licensing Legislation, and if the recipient is unable to comply, we will not be able to complete the delivery.
(vi) Northern Territory
If you are a Northern Territory resident or ordering this for delivery to the Northern Territory the listing of a Product on our Website does not constitute an offer to sell that Product to you. Prior to any offer or acceptance, additional price checks will be completed and the price of the product may increase to ensure compliance with the Northern Territory Minimum Unit Price Legislation. This may change the final price calculation for your order.
11.3 Non-delivery Areas
Due to local liquor licensing restrictions or matters relating to logistics, we are not able to deliver to the noted Non-delivery Areas. If you are a resident of a Non-delivery Area or ordering this for delivery to a Non-delivery Area the listing of a Product on our Website does not constitute an offer to sell that Product to you.
12. BULK ORDERS
12.1 Bulk Orders cannot be processed via our Website.
12.2 Any attempt to place a Bulk Order via the Website will cause you to receive a prompt requesting that you contact us via email or phone. Provided it is legal for us to do so, we will then assist you in arranging the Bulk Order in accordance our Bulk Order Terms.
13. CANCELLING AN ORDER
13.1 Cancellation by us
(a) We may cancel any Order, or refuse to accept an Order, or part of an Order at any time (including any Orders that we have accepted or issued an invoice for) without any Liability to you for that refusal or cancellation if:
- the Products the subject of your Order are not available;
- we are unable to process your payment;
- there is an error in the price or the product description posed on the Website in relation to the Products the subject of your Order;
- we reasonably suspect that you have breached any of the provisions featured within these Terms by placing the Order;
- we reasonably suspect fraudulent or unlawful activity; or
- you are unable to provide us with proof of age upon our request.
13.2 Cancellation by you
- Unless otherwise provided for pursuant to the Australian Consumer Law or any other Law which the parties cannot legally contract out of, you agree that you cannot change or cancel an Order after it has been placed.
- If you wish to change or cancel your Order, please contact email@example.com. Every attempt will be made to accommodate your request, however unfortunately no guarantee can be given once an Order has been placed.
- If we agree to you changing or cancelling your order after it has been placed, we may do so subject to:
- you providing us with proof of purchase of the ordered Products;
- the ordered Products being in their original condition and packaging; and
- you agreeing to pay an amount we request on account of our reasonable costs of processing the change or cancellation.
- If your Order has already been processed, you may still be able to return the Products the subject of your Order. Please see our Returns and Refunds policy below for more information.
14. RETURNS AND REFUNDS
14.1 Our refunds and returns policy incorporates those rights you have under the Australian Consumer Law.
14.2 As a precondition to our assessment of any request for a refund or a return we will ask you to provide us with a valid proof of purchase of the relevant Product or Service. This may include your original receipt, your tax invoice or a statement from us.
14.3 Failures in respect of Products
- Our Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to:
- a replacement or refund for a major failure; and
- compensation for any other reasonably foreseeable loss or damage.
- You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
- If the failure is minor, we reserve our right to offer to repair only.
14.4 Failures in respect of Services
- Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
- You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
- If the failure does not amount to a major failure, you are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
14.5 How to return Products
Please see our refunds and returns policy.
15. RISK AND TITLE
15.1 The risk in the Products will pass to you once you have taken delivery of the Products.
15.2 Title to the Goods will not pass to you until we have received payment in full for the Products.
16.1 Without excluding, restricting or modifying the rights and remedies which may be afforded to you by the Australian Consumer Law or our potential liability to you under the Australian Consumer Law:
- you acknowledge that the Website and each Product is provided "as is" and that we do not make any warranty or representation as to the suitability of the Website or a Product for any purpose;
- we exclude all other implied terms and warranties, whether statutory or otherwise, relating to the Products, services and the Website or the subject matter of these Terms to the maximum extent permitted; and
- we (and our related bodies corporate, agents, employees, officers and representatives) will not be liable to you for indirect and consequential loss arising from or connected to these Terms in contract, tort, under any statute or otherwise (including, without limitation, for loss of revenue, loss of profits, failure to realise expected profits or savings, loss or corruption of data and any other commercial or economic loss of any kind).
16.2 Our liability (and any liability of our related bodies corporate, agents, employees, officers and representatives) to you for loss or damage of any kind arising out of these Terms or in connection with the relationship established by it is reduced to the extent (if any) that you cause or contribute to the loss or damage. This reduction applies whether the liability arises in contract, tort (including negligence), under any statute or otherwise.
17. TERMINATION AND SUSPENSION
- We reserve the right to refuse service, terminate accounts and/or remove or edit content if we deem that you have likely acted in breach of these Terms or have used the Website in a fraudulent, illegal or improper manner. We also reserve the right to otherwise cancel Orders in accordance with clause 13.
- If we lock, suspend or delete your account under clause 17.1, then we will refund all credits that you are entitled to receive under these Terms by direct deposit to your nominated account once we have conducted all our verification and other relevant checks.
- We may immediately suspend, terminate or limit your access to and use of the Website and (where relevant) your Account for any reason, including (but not limited to):
- If you breach these Terms or we reasonably suspect (in our sole discretion) that you have breached these Terms; or
- We are required by Law to do so.
- You may stop using the Website at any time and for any reason.
- We may stop making the Site (or any part of it) available without prior notice. If so, any Orders that we have accepted will not be affected by this unless the Products that have been ordered are no longer available or we are prevented from supplying the Products, in which case, we will notify you and will refund to you all valid payments received by us for those Products.
18. FORCE MAJEURE
18.1 Neither party will be in breach of these Terms or liable for any failure or delay in the performance of its obligations under these Terms to the extent that the failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the other party.
18.2 If these Terms are no longer capable of being performed due to circumstances beyond the reasonable control of the parties, whether as a result of a Force Majeure Event or otherwise:
- the agreement between the parties will be at an end; and
- both parties must immediately discharge all of their financial and other obligations under these Terms up to the date of expiration or termination of the Terms.
19.1 Governing Law
These Terms are governed by the laws of New South Wales. The parties submit to the nonexclusive jurisdiction of courts exercising jurisdiction there.
Any provision of these Terms which is prohibited or unenforceable in the jurisdiction specified in clause 19.1 above will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of these Terms nor affect the validity or enforceability of that provision in any other jurisdiction.
No variation, modification or waiver of any provision in these Terms, nor consent to any departure by any party from any such provision, will be of any effect unless it is in writing, signed by the parties or (in the case of a waiver) by the party giving it. Any such variation, modification, waiver or consent will be effective only to the extent to or for which it may be made or given.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Any indemnity or any obligation of confidence under Terms is independent and survives termination of these Terms or an agreement arising in connection with these Terms. Any other term by its nature intended to survive termination of these Terms survives termination of these Terms.