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Terms & Conditions

1. Parties and Introduction to Terms

1.1. This agreement sets out the terms and conditions (the “Terms”) upon which:

(a) WineBourse Limited (“WineBourse”) provides you (the “Client” or “You” as the context requires) with access to WineBourse’s internet based fine wine trading platform (the “Exchange”) hosted at http://www.winebourse.com (the “Website”); and

(b) WineClear Ltd (“WineClear”) provides You with settlement services for the sale and purchase of wines traded on the Exchange, including but not limited to the entry into a Seller’s Contract of Sale under Section 11.3 or a Buyer’s Contract of Sale under Section 19.3 (“Settlement Services”); and

(c) WineCustody Ltd (“Wine Custody”) provides You with wine custody services at certain accepted warehouses, such custody services are described in more detail below at Section 24 (Custody Services and Custody Fees) (“Custody Services”).

1.2. Together WineBourse, WineClear and WineCustody are hereafter referred to as “We”, “Us” or “Our” as the context requires and “WineBourse group company” shall mean any of WineBourse, WineClear and WineCustody and any company from time to time under common control with any of WineBourse, WineClear or WineCustody.

1.3. These terms will apply to your use of the Exchange, Settlement Services and Custody Services (the “Services”). Please read the Terms carefully and make sure that You understand them before using any of the Services.

1.4. You should print a copy of these Terms or save them to your computer for future reference.

1.5. By registering with the Exchange and by your continued use of the Exchange and the Services, You expressly agree to be bound by the Terms. If You refuse to accept the Terms, You will not be able to use the Exchange or the Services.

2. About Us

2.1. WineBourse is a limited liability company registered and incorporated in the Island of Jersey with registered number 112342, whose registered office and main trading address is at 17 The Esplande, St Helier, Jersey JE2 3QA.

2.2. WineClear is a limited liability company incorporated and registered in England and Wales with company number 08709865, whose registered office and main trading address is at 1 Charterhouse Mews London EC1M 6BB

2.3. WineCustody is a limited liability company incorporated and registered in England and Wales with company number 08710210, whose registered office and main trading address is at 1 Charterhouse Mews London EC1M 6BB

2.4. To contact Us, please see our contact us page
http://www.winebourse.com/staticpage/contact

3. Wine Trading

3.1. All positions listed with Us are actual cases of wine for intended physical delivery and not offers to invest in alternative asset class or speculate on a futures contract.

3.2. We treat wines listed with Us in accordance with the UK HMRC view as a perishable good and not an investable asset therefore We represent trading on WineBourse as wholesale wine purchasing by advanced wine consumers and professional traders and not as an investment activity. We do not offer investment opportunities or provide investment advice.

3.3. You understand that trading in wine bears risks and that the nature of wine is such that wine may be corked, prematurely oxidised, display advanced signs of aging or suffer from other imperfections.

3.4. We do not provide consumer advice and recommend that you obtain independent wine expert advice before purchasing any product. You understand that we bear no responsibility for spoiled or counterfeit wines and you indemnify us from any damages or losses below in Section 32 (“Indemnities”).

4. Other Applicable Terms

4.1. These Terms refer to the following additional terms, which also apply to Your use of the Exchange, Settlement Services and the Website:

(a) Our Website Use Policy http://www.winebourse.com/staticpage/websiteuse , which sets on the terms upon which You may make use of Our Website;

(b) Our Privacy Policy http://www.winebourse.com/staticpage/cookiepolicy , which sets out the terms on which we process any personal data we collect from You, or that You provide to Us. By using the Website, You consent to such processing and you warrant that all data provided by you is accurate;

(c) Our Acceptable Use Policy http://www.winebourse.com/staticpage/acceptableuse , which sets out the permitted uses and prohibited uses of the Website. When using the Website, you must comply with this Acceptable Use Policy; and

(d) Our Cookie Policy http://www.winebourse.com/staticpage/cookiepolicy , which sets out information about the cookies on Our site.

5. Amendment of Terms

5.1. We have established a supervisory committee (the “Supervisory Committee”) which regularly reviews the Terms. We may revise the Terms at any time by amending this page. We will notify You of the change by e-mail sent to the address provided by You in accordance with Section 6 (Membership Requirements), but the effectiveness of any change is not dependent upon receipt of such notice.

5.2. Each time You use the Exchange or the Settlement Services, the Terms in force at that time will apply to any contract entered into between You and Us.

5.3. If You do not agree with the Terms as amended you may terminate your agreement with Us in accordance with Section 27(Termination) below.

6. Membership Requirements

6.1. In order to access the Services, We require that You register as a member with Us.

6.2. If registering as an individual We require that You provide Us with your:

(a) full name;

(b) permanent residential address and delivery address for the physical delivery of any products (if different);

(c) phone number; and

(d) e-mail address.

6.3. You may not access the Services unless you are at least 18 years old.

6.4. If registering as a company, We require that You provide Us with your:

(a) organisation name;

(b) business address and delivery address for the physical delivery of any products (if different);

(c) details of a primary contact person duly authorised to act on behalf of your company; and

(d) VAT number (or your local equivalent).

6.5. Where You register as a company, the person who completes the registration represents and warrants to Us that they are authorised to act for You, and that they have the capacity to understand and accept the Terms on the Your behalf.

6.6. Upon registration WineCustody shall create a sub-account in your name (a “WineCustody Account”) with its own account with an Accepted Warehouse (as defined in Section 6.8 below) in accordance with Section 24 (Custody Services and Custody Fees). Such WineCustody Account will be Your default account for use on the Exchange.

6.7. Private accounts with a personal account at an Accepted Warehouse (a “Private Account”) may be accepted for use on the Exchange, provided always that acceptance is in Our sole discretion and subject to the provision of account details for the relevant Private Account.

6.8. A full list of Accepted Warehouses are set out at the following link http://www.winebourse.com/staticpage/faq

6.9. You are responsible for ensuring that the information provided in accordance with Sections 6.2, 6.4 and 6.7are kept current and accurate at all times.

6.10. We may in the future require additional anti-money laundering or KYC information so as to verify Your identity, or similar purpose. Failure to supply such information may lead to suspension of your membership.

6.11. Acceptance of Your registration is at Our sole discretion. Subject to Section 28(Consequences of Termination), We reserve the right to refuse, suspend or revoke registration at any time without liability to You.

6.12. Please note that additional information shall be required if You intend to sell wine on the Exchange, see Section 9(Offers for Sale) below.

7. Authorised User ID

7.1. Once registered We shall provide You with a unique username and password to access your account on the Exchange, an “Authorised User ID”.

7.2. You acknowledge and agree that You are responsible for any instructions transmitted on the Exchange using Your Authorised User ID, whether made by you or otherwise.

7.3. So that We are able to take appropriate steps to prevent unauthorised access, You agree to inform Us immediately if you become aware or suspect that Your Authorised User ID is known by any person that is not or is no longer authorised by You to submit instructions on Your behalf on the Exchange.

8. Wine Eligibility

8.1. Only wine meeting the requirements of Section 8.2 and 8.3 shall be eligible for trade on the Exchange.

8.2. For a wine to be eligible for trade on the Exchange it must conform with the eligibility criteria set out below and in the following provisions of this Section 8.

(a) the Wine must be held in a WineCustody Account, such as that created under Section 24 (Custody Services and Custody Fees), and written confirmation that such wine is held with WineCustody must have been provided to WineBourse and WineClear; or

(b) if not held in a WineCustody Account, then held with a reputable warehouse that is licensed by the governing tax and custom or equivalent revenue authorities in the jurisdiction in which is properly licensed and authorised to hold wine on an all taxes and duties unpaid basis ("In Bond") and must be held in such warehouse on an all taxes and duties unpaid basis. For the purposes of these Terms, wine not "In Bond" is "Out of Bond".

(c) the wine must have either (i) remained In Bond direct from allocation by the producer and have not been previously subject to any customs or other tax or duty levied within the European Union [unless imported from their country of origin]; or (ii) directly allocated by the producer Out of Bond, before being put back In Bond to offer on the Exchange and You must be in possession of the documentation proving the wine was directly allocated Out of Bond and then placed In Bond.

(d) Wine must be in “Pristine Condition”, that is, conforms with the criteria set out in (i) to (v) below and WineBourse reserves the right to determine in its absolute discretion whether the wine is Pristine Condition.

(i) Un-split original cases where wine has not been repackaged.

(ii) Original, undamaged, unblemished, and unmarked labels.

(iii) Original, undamaged, unblemished, and unmarked capsules.

(iv) Wine bottle fill levels are equal to or above:

(v) Above base neck in the case of Bordeaux style bottles.

(vi) 3cm from bottom of cork - Burgundy and other style bottles.

(vii) No strip labels, back labels, or any other additional label of any kind exist anywhere on the bottles.

(e) A report on the condition of the wine, produced by a suitably qualified and experienced person, containing the minimum content which would be contained in a condition report (as defined in Sections 13.4 to 13.6) and specified rotation number in the relevant acceptable warehouse's standard form must be provided to Us in respect of the wine (unless agreed with Us on an individual per case basis).

8.3. Wine of a vintage older than 1990 shall not be eligible for trade on the Exchange.

8.4. We reserve the right to refuse any wine for trade on the Exchange for any reason.

9. Offers for Sale

9.1. The following types of offers for sale (each an “Offer”) may be made on the Exchange, a:

(a) fixed offer, being an unconditional offer for sale which may be accepted at any time (a “Fixed Offer”);

(b) spread trade offer, being an offer which is conditional upon the completion of another specified trade (a “Spread Trade Offer”); and

(c) specialist offer, being an offer to sell a product, at a specialist offer price (a “Specialist Offer Price”) and to purchase the same product at a specialist bid price which is shall be maximum 7% (seven per cent) less than the Specialist Offer Price (a “Specialist Bid Price”) either of which may be accepted at any time (a “Specialist Offer”).

9.2. A Fixed Offer is made by You on the Exchange when You have entered the following information on the offer page:

(a) the name of the wine which is subject to the Offer (the “Sale Wine”);

(b) the nature of the Sale Wine, whether Ordinary Sale Wine or Non-Standard Sale Wine, as defined in Section 10.2;

(c) the vintage of the Sale Wine;

(d) the bottle size and number of bottles in the case for sale;

(e) the offer price for the Sale Wine;

(f) the rotation number of the Sale Wine;

(g) the time period for which the offer shall be valid, which shall be a period of at least 1 hour and no greater than 2 weeks (the “Offer Period”);

(h) accepted the Terms; and

(i) clicked submit.

9.3. A Spread Trade Offer is made by You on the Exchange when You have entered:

(a) the information required under Section 9.2 on the offer page; and

(b) the details of the trade(s) on which the Spread Trade Offer is conditional (the “Spread Trade”). Please note that the Spread Trade Offer will only be accepted if the Sale Wine constituting part of the Spread Trade is in Your WineCustody Account.

9.4. A Specialist Offer is made by You on the Exchange when You have entered:

(a) the information required under Section 9.2 on the offer page; and

(b) specified that You wish to make a Specialist Offer [by selecting that option on the Offer screen page] on the offer page, provided that:

(i) Your WineCustody Account is holding at least one case of the product which is the subject of the Specialist Offer); and

(ii) You hold sufficient funds to meet at least one bid made for product, which is the subject of the Specialist Offer.

9.5. You agree that any Offer made on the Exchange is an unconditional offer for sale, which may be accepted by WineClear at any time, subject only to the Offer Period and any Spread Trade.

9.6. Offers may be made in sterling only.

9.7. You are responsible for the accuracy of any Offer made on the Exchange.

9.8. We, on the recommendation of the Supervisory Committee, reserve the right to remove a listing which We consider, in Our sole discretion, breaches the code of conduct set out in Section 24(Supervisory Committee and Code of Conduct).

10. Seller Warranties

10.1. When making an Offer on the Exchange You warrant, represent and undertake to Us that:

(a) You are at least 18 years old;

(b) all information set out in the Offer is accurate and complete and up-to-date;

(c) the Sale Wine is fit for human consumption;

(d) You own full legal and beneficial title to the Sale Wine free and clear of encumbrances (subject only to the Sale Wine being accepted in a WineCustody Account, if that is the case);

(e) Your sale of the Sale Wine does not and will not breach any applicable law, statute or legislation;

(f) no third party rights (including intellectual property rights) are infringed by the making of the Offer on the Exchange;(g) no tax or other duties including UK Duty and Value Added Tax are outstanding in respect of the Sale Wine and no tax or duties shall be payable upon transfer of the Sale Wine;

(h) no warehousing fees or similar custody fees are outstanding in relation to the Sale Wine; and

(i) You have not made any: (i) other offer to sell the Sale Wine on the Exchange or privately; or (ii) offer to sell the Sale Wine on any other exchange or platform, in each case where such offer is open to acceptance during the Offer Period.

10.2. When making an Offer on the Exchange in respect of “Standard Condition” Sale Wine You warrant, represent and undertake to Us that:

(a) Sale Wine in original wooden cases or original case from other material; and

(b) Original, undamaged, unblemished, and unmarked labels; and

(c) Original, undamaged, unblemished, and unmarked capsules

(d) Wine bottle fill levels are equal to or above

(i) Base Neck - Bordeaux Bottles

(ii) 3cm - Burgundy Bottles

(e) No strip labels or any import labels of any kind exist anywhere on the bottle Sale Wine that is not “Standard Condition” Sale Wine shall be deemed to be “NonStandard Condition” Sale Wine.

11. Offer Acceptances

11.1. Where, during the Offer Period, another client makes a bid or a bid is live on the Exchange which:

(a) matches a Fixed Offer or a Specialist Offer; or

(b) provided that any relevant Spread Trade has been completed, matches a Spread Offer, that You have made on the Exchange (such bid being the “Matched Bid” and the value of the Matched Bid and the Offer being the “Settlement Price”) and provided further that the delivery charges have been agreed in accordance with Section 21 (Delivery Charges), WineClear shall accept your Offer (an “Offer Acceptance”) on the date on which Your Offer and the other client’s bid were matched (the “Acceptance Date”).

11.2. In accepting Your Offer, WineClear relies upon Your warranties set out in Section 10(Seller Warranties).

11.3. An Offer Acceptance is made under separate agreement between You and WineClear (a “Seller’s Contract of Sale”) which incorporates the Terms.

11.4. A summary of the Seller’s Contract of Sale terms shall be confirmed to You by email.

11.5. WineClear may cancel a Seller’s Contract of Sale:

(a) where You and WineClear mutually agree that it should be cancelled;

(b) where We, in Our sole discretion, determine that the Matched Bid has been made in error; or

(c) in accordance with Section 13.2.

(d) where the Buyer being a consumer has exercised its rights to cancel under Section 23 (other than in respect of misdescription under Section 23.6); in which cases the Seller shall have their wine returned to their account and shall be refunded all Winebourse and WineCustody fees incurred in connection with the cancelled sale; or

(e) where the wine does not conform with the eligibility requirements of Section 8.2 and 8.3; or

(f) where the Buyer being a consumer has exercised its rights to cancel under Section 23.6; in which case the Seller shall have their wine returned to their account but shall not be refunded all Winebourse and WineCustody fees incurred in connection with the cancelled sale and the Seller shall be liable for all costs incurred by Winebourse and WineCustody in connection with the cancelled trade.

12. Delivery of Sale Wine

12.1. In relation to each Seller’s Contract of Sale between You and WineClear, You must place a transfer order instruction with the applicable Accepted Warehouse to deliver the Sale Wines to WineCustody’s account at the applicable Accepted Warehouse (the account details of which shall be provided to you by email) (“WineCustody’s Account”) and arrange for the Sale Wine to be delivered to WineCustody’s Account within 5 (five) business days of the Acceptance Date (the “Delivery Period”).

12.2. WineCustody shall not be deemed to have accepted the Sale Wine until the completion of the Buyer’s Inspection Period set out in Section 13 – Inspection of Sale Wine.

12.3. If We determine, in our sole discretion, that any wine delivered to WineCustodys Account in purported compliance with the Seller’s Contract of Sale does not conform with the description of the Sale Wine in the Offer (“Non-Conforming Wine”), We shall notify you of the non-conformance by email and/or telephone.

12.4. Where we determine, in our sole discretion, that the wine delivered is NonConforming Wine, Your obligation under Section 12.1to deliver Sale Wine to WineCustody’s Account within the Delivery Period shall not be satisfied.

12.5. If you deliver Non-Conforming Wine or otherwise fail instruct the Applicable Warehouse to deliver the Sale Wine to WineCustody’s Account within the Delivery Period, We may:

(a) for the purpose of fulfilling the bid made by another client, purchase replacement wine in bond on or off of the Exchange which conforms to the description of the Sale Wine in the Offer;

(b) hold the Non-Conforming Wine as security for the fulfilment of your outstanding obligations;

(c) in the case of criminal conduct, such as counterfeiting, report the incident to the relevant authorities;

(d) terminate the Seller’s Contract of Sale; and(e) suspend your membership until such time as the Supervisory Committee consider that You are in compliance with the Code of Conduct and the Terms, notification of such actions will be made to You by email.

12.6. You agree that title in the Sale Wine passes to WineCustody on the Acceptance Date but that risk remains with You until the Sale Wine has been delivered to WineCustody’s Account and accepted in accordance with Section 12.2.

12.7. You expressly agree that in the case of a failure to deliver the Sale Wines during the Delivery Period as well as delivery of Non-Conforming Wine, You shall pay the penalty fee to terminate your Seller’s Contract of Sale (the “Break Fee”) being the higher of ?30 (thirty pound sterling) or the sum of all fees, charges and penalties which We incurred with regard to the terminated transaction. You also agree that paying the Break Fee does not prevent each such instance from being reviewed by our Supervisory Committee which could take further disciplinary action against You.

13. Inspection of Sale Wine

13.1. You agree that WineClear may, for the purpose of inspection, transfer the Sale Wine into an account with WineCustody in the name of the client that has made the relevant Matched Bid (the “Buyer”) and, for a period of 7 business days from transfer of the Sale Wine to such WineCustody Account (the “Buyer’s Inspection Period”), the Buyer may, at their own cost order a condition report through WineCustody.

13.2. If the Buyer rejects the Sale Wine in accordance with Section 23 (Returns and Cancellations of Buyer’s Contract of Sale), within the Buyer’s Inspection Period, You agree that:

(a) the Seller’s Contract of Sale shall be terminated; and

(b) WineClear shall, at Your expense, procure the transfer of the Sale Wine to Your WineCustody Account established in accordance with Section 24 (Custody Services and Custody Fees) or to such other account with an Acceptable Warehouse as agreed in writing between You and WineClear.

13.3. WineClear shall notify You of such an event by email and/or telephone.

13.4 When a Buyer requests a condition report, WineBourse will request the bonded warehouse in which the wine is stored to generate the condition report and the trade will not clear unless the Buyer has had a minimum of 24 hours to receive the condition report and review it. Neither WineBourse nor any WineBourse group company is responsible if the email attaching the condition report does not arrive with the Buyer, is delivered to a junk, spam or similar folder or is not otherwise read by the user. It shall be the Buyer’s responsibility to contact WineBourse on info@winebourse.com if there are any problems with receiving the emailed condition report.

13.5. The Buyer who ordered the condition report shall be responsible for determining whether the case of wine as presented in the condition report matches the actual wine they intend to purchase in terms of both its description as well as the definition of Standard Condition as defined in the Terms and Conditions. Neither WineBourse nor any WineBourse group company will be liable for any loss or damage as a result of a trade being cleared and later discovered via the condition report that it was not the correct wine or the specified condition as per the trade confirmation.

13.6. All condition reports shall be the property of WineCustody and may be resold as often and to whom WineCustody chooses. Users ordering condition reports on WineBourse will accept the receipt of a resold condition report in the same manner as one initiated by their request, and it will have the same validity in upholding the Terms and Conditions set out in the site.

14. Seller’s Transactions and Settlement Fees

14.1. The greater of a ?15 (fifteen pound sterling) or 3% of the sale price of the wine shall be payable by You to WineClear as a transaction fee on entry into the Seller’s Contract of Sale (the “Seller’s Transaction Fee”).

14.2. Where the Sale Wine is delivered to WineCustody’s Account, in accordance with Section 12 (Delivery of Sale Wine), from an account which is not a WineCustody Account, a settlement fee (the “Seller’s Settlement Fee”), shall be payable by You to WineClear and shall be calculated on the following basis:

(a) ?2.00 (two pounds sterling) for each case of Sale Wine delivered which has a volume no greater or equal to 4.5 litres; and

(b) ?4.00 (four pounds sterling) for each case of wine which has a volume greater than 4.5 litres.

14.3. The Seller’s Transaction Fee and the Seller’s Settlement Fee shall be due and payable on completion of the Seller’s Contract of Sale.

15. Payment

15.1. Upon the completion of a Seller’s Contract of Sale We agree to pay the Settlement Price, less:

(a) any delivery charges payable by You in accordance with Section 22(Delivery Charges);

(b) the Seller’s Transaction Fee; and

(c) the Seller’s Settlement Fee, into the account registered with Us in accordance with Section 6.2 or 6.4, such payment to be made within 3 (three) business days after the completion of the Buyer’s Inspection Period set out in Section 13 – Inspection of Sale Wine.

16. Title Disputes

16.1. If a third party notifies us of an ownership claim over any wines subject to an Offer by You on the Exchange (a “Title Claim”), We shall inform You of such Title Claim as soon as reasonably practicable.

16.2. Where a Title Claim arises, You agree that:

(a) We shall be entitled to immediately withdraw Your affected wine from the Exchange; and

(b) if the affected wine has been delivered to WineCustody:

(i) WineCustody are entitled to retain the affected wine subject to the Title Claim until You and the third party have provided satisfactory evidence of a resolution to the Title Claim to Us, determined by Us in Our sole discretion; and

(ii) upon receipt of a court order for the delivery of the affected wine to the third party, transfer the wine to that third party without liability to You;

16.3. You agree to reimburse Us, on demand and on a full indemnity basis, from any claims, costs, liabilities and expenses whatsoever, incurred by Us as a result of a Title Claim.

17. Submitting a BID

17.1. The following types of bid (each a “Bid”) may be made on the Exchange, a:

(a) fixed bid, being an unconditional bid for the purchase of wine which may be accepted at any time (a “Fixed Bid”);

(b) spread trade bid, being a bid which is conditional upon the completion of a specified trade (a “Spread Trade Bid”); and

(c) specialist bid, being a bid to purchase a product, at a specialist bid price (a “Specialist Bid Price”) and to sell the same product at a specialist offer price which is shall be 7% (seven per cent.) higher than the Specialist Bid Price (a “Specialist Offer Price”) either of which may be accepted at any time (a “Specialist Bid”).

17.2. A Fixed Bid is made by You when You have entered the following information on the bid page:

(a) the description of the wine subject to the Bid (the “Bid Wine”);

(b) the bottle size and number of bottles in the case to be purchased;

(c) the bid price for the Bid Wine;

(d) Your preferred delivery location (the “Delivery Location”), which may be:

(i) Your WineCustody Account;

(ii) a Private Account in the Accepted Warehouse in which the Bid Wines are held by WineCustody (a “Local Delivery Location”);

(iii) a Private Account in an Accepted Warehouse which is not the Accepted Warehouse in which the Bid Wines are held by WineCustody (a “Transfer Delivery Location”); or

(iv) Your address provided in Section 6.2(b) or 6.4(b) (an “Out of Bond Location”).

(e) the time period for which the Bid shall be valid, which shall be a period of at least 1 hour and no greater than 2 weeks (the “Bid Period”);

(f) Your preferred payment method;

(g) accepted the Terms; and

(h) clicked submit

17.3. A Spread Trade Bid is made by You on the Exchange when You have entered:

(a) the information required under Section 17.2 on the bid page; and

(b) the details of the trade(s) on which the Spread Trade Bid is conditional (the “Spread Trade”). Please note that the Spread Trade Bid will only be accepted if the Sale Wine constituting part of the Spread Trade is in Your WineCustody Account.

17.4. A Specialist Bid is made by You on the Exchange when You have entered:

(a) the information required under Section 17.2 on the bid page; and

(b) specified that You wish to make a Specialist Bid by selecting that option on the bid page, provided that:

(i) Your WineCustody Account is holding at least one case of the product which is the subject of the Specialist Bid; and

(ii) You hold sufficient funds to meet at least [x] bids made for product which is the subject of the Specialist Bid.

17.5. You agree that any Bid made on the Exchange is an unconditional offer to purchase which may be accepted by WineClear at any time, subject only to the Bid Period and any Spread Trade.

17.6. Bids may be made in sterling only.

17.7. You are responsible for the accuracy of any Bid made on the Exchange.

18. Buyer Warranties

18.1. When making a Bid on the Exchange You warrant to Us that:

(a) all information provided in accordance with Sections 6.2, 6.4 and 6.7 and all information set out in the Bid is accurate and complete and up-to-date;

(b) you have the funds available to purchase the Bid Wine;

(c) no tax or other duties including UK Duty and Value Added Tax shall be payable upon transfer of the Bid Wine to You other than in accordance with Section 22.3; and

(d) where the Delivery Location is to an Accepted Warehouse, your account with such Accepted Warehouse is in good standing.

19. Bid Acceptances

19.1. Where, during the Bid Period, another client makes an offer, or an offer is outstanding on the Exchange, which:

(a) matches a Fixed Bid or a Specialist Bid; or

(b) provided that any relevant Spread Trade has been completed, matches a Spread Bid, that You have made on the Exchange (such offer being the “Matched Offer” and the value of the Bid and the Matched Offer being the “Settlement Price”) and provided further that the delivery charges have been agreed in accordance with Section 22(Delivery Charges), WineClear shall accept your Bid (a “Bid Acceptance”) on the date on which Your Bid and the other client’s offer were matched (the “Acceptance Date”).

19.2. In accepting Your Bid, WineClear rely upon Your warranties set out in Section 18(Buyer Warranties).

19.3. A Bid Acceptance is made under separate agreement between You and WineClear (a “Buyer’s Contract of Sale”) which incorporates the Terms, including, without limitation references to Section 21 (Buyer’s Transaction Fees). You will be given the opportunity to check your Bid before the Buyer’s Contract of Sale is finalised.

19.4. A summary of the Buyer’s Contract of Sale terms shall be confirmed to You by email (the “Trade Notification”).

19.5. WineClear may cancel a Buyer’s Contract of Sale where:

(a) You and WineClear mutually agree that it should be cancelled;

(b) We, in Our sole discretion, determine that the Matched Offer has been made in error; or

(c) a client that has made a Matched Offer (the “Seller”) has failed to deliver the Bid Wines to WineClear within 5 (five) business days of the Acceptance Date.

(d) where the wine does not conform with the eligibility requirements of Section 8.2 and 8.3 and where cancelled in accordance with (c)-(d) above, the Buyer shall be refunded all Winebourse and WineCustody fees incurred in connection with the cancelled sale but shall not be refunded all Winebourse and WineCustody fees incurred in connection with a sale cancelled in accordance with (a) above unless mutally agreed.

20. Delivery and Inspection of Bid Wine

20.1. WineClear shall be deemed to have delivered the wine to you on upon confirmation from WineCustody that the wine has been delivered into Your WineCustody Account (such account having been established in accordance with Section 24 (Custody Services and Custody Fees).

20.2. For a period of 7 (seven) business days from delivery of the Bid Wine into Your WineCustody Account (the “Buyer’s Inspection Period”), You may, at Your own cost, personally inspect the Bid Wine at the Accepted Warehouse or order through WineCustody a third-party condition report relating to the Bid Wine which will be executed by the report and photography specialists of an Accepted Warehouse.

20.3. If the Delivery Location specified in Your Bid is a location other than Your WineCustody Account, you agree that, following the Buyer’s Inspection Period, and subject to payment of the Buyer’s Transaction Fees set out in Section 21(Buyer’s Transaction Fees) and the delivery charges set out in Section 22(Delivery Charges), WineClear shall, on your behalf, instruct WineCustody, to deliver the wine to the Delivery Location.

20.4. You agree that title in the Bid Wine passes to You upon full and final payment of the Settlement Price, the Buyer’s Transaction Fees set out in Section 21 (Buyer’s Transaction Fees) and any delivery charges in accordance with Section 22(Delivery Charges) and risk transfers to you upon deemed delivery in accordance with Section 20.1.

21. Buyer’s Transaction Fees

21.1. The greater of ?15 (fifteen pound sterling) or 3% of the sale price shall be payable by You to WineClear as a transaction fee on entry into the Buyer’s Contract of Sale (the “Buyer’s Transaction Fee”).

21.2. The Buyer’s Transaction Fee shall be due and payable upon entry into the Buyer’s Contract of Sale.

22. Delivery Charges

22.1. Where:

(a) Your Bid matches an existing Offer which is outstanding on the Exchange, the Exchange shall notify you of the cost of delivery to the location specified in Your Bid; or

(b) Your Offer matches an existing Bid which is outstanding on the Exchange, the Exchange shall notify you of the cost of delivery to the location specified in the Matched Bid, in each case the cost of delivery being the “Delivery Charge”.

22.2. If:

(a) you accept the Delivery Charge then payment shall be due from your account;

(b) you reject the Delivery Charge then Your Bid or Your Offer (as applicable) shall not be processed and no Seller’s Contract of Sale or Buyer’s Contract of Sale (as applicable) shall be entered into.

(c) Where the Delivery Location is an Out of Bond Location you agree that WineClear shall not be required to instruct WineCustody to deliver the wine to the Out of Bond Location and WineCustody shall not be required to deliver the wine to the Out of Bond Delivery Location unless and until You have paid all VAT, excise duty and customs duty amounts (as applicable) invoiced by WineClear in respect of such wine being delivered to an Out of Bond Location.

23. Returns and Cancellations of Buyer’s Contract of Sale

23.1. This Section 23 only applies if You are a consumer (as defined by and for the purposes of the Consumer Rights Act 2015 (the “Act”).

23.2. If You are a consumer, You have a legal right to cancel a contract under the Act during the period set out below in Section 23.3. This means that during the relevant period if You change your mind or for any other reason you decide You do not want to keep the Bid Wine purchased on the Exchange, You can notify us of your decision to cancel the Buyer’s Contract of Sale and receive a refund.

23.3. You have a period of 30 (thirty) calendar days in which you may cancel the Buyer's Contract of Sale, starting from the day after the day you receive the Bid Wine. For the purpose of these Terms the Bid Wine is received upon deemed delivery in accordance with Section 20.1.

23.4. To cancel a Buyer’s Contract of Sale, please contact Us by telephone or in writing by sending an e-mail to info@winebourse.com or by sending a letter to WineBourse, 80 Coleman Street, London, EC2R 5BJ. You may wish to keep a copy of your cancellation notification for your own records. If You send Us your cancellation notice by e-mail or by post, then your cancellation is effective from the date We receive Your e-mail or the letter to Us. If You call Us (on +44(0)2074896490) to notify Us of your cancellation, then your cancellation is effective once you receive written confirmation from Us of your cancellation following your telephone call (which may be by e-mail or post).

23.5. You will receive a full refund of the price You paid for the Bid Wine and any applicable delivery charges that You paid. Any duty and VAT charges which may have been paid by you should you have prior to cancellation have had the Wine transferred to an Out of Bond location are not part of the purchase price nor a part of the delivery cost and are not refundable. We will process the refund due to You as soon as possible and, in any event, within 30 calendar days of the later of the day on which your cancellation is effective as described in Section 23.4 and the date on which the relevant wine is returned to Us. Your right to a refund is subject to the exact case of wine which was purchased being returned to us (and not for the avoidance of doubt a different case of the same producer, name and vintage) with documentation supporting the same. If You cancelled the Buyer's Contract of Sale because the Bid Wine was mis-described, please see Section 23.6.

23.6. If You have cancelled the Buyer's Contract of Sale under this Section 23 because the Bid Wine was mis-described, We will refund the price of the mis-described Bid Wine in full, any applicable delivery charges, and any other reasonable costs You incur in returning the Bid Wine to Us. As a consumer, you will always have legal rights in relation to products that are not as described. These legal rights are not restricted by the language used in the clauses of this returns policy in this Section 23 or these Terms. [Any duty and VAT charges which may have been paid by you should you have prior to cancellation have had the Wine transferred to an Out of Bond location before cancellation on the grounds of misdescription shall also be refunded]. Your right to a refund is subject to the exact case of wine which was purchased being returned to us (and not for the avoidance of doubt a different case of the same producer, name and vintage) with documentation supporting the same.

23.7. We shall make such refund to You on the credit card or debit card which You used to pay.

23.8. Full details of your legal right to cancel and an explanation of how to exercise it are provided in the Trade Notification. Advice about your legal right to cancel the Buyer’s Contract of Sale is available from your local Citizens' Advice Bureau, Trading Standards office or qualified legal advisor.

24. Custody Services and Custody Fees

24.1. By registering as a member with Us you authorise WineCustody to create and manage a wine storage sub-account in your name in WineCustody’s records (the “WineCustody Account”).

24.2. You and WineCustody agree that:

(a) upon the transfer of wines into a WineCustody Account the legal title to such wines shall be held by WineCustody and the beneficial ownership title shall remain with You, such that wines placed with WineCustody are held by WineCustody and registered in its name as your nominee for the purposes of facilitating the operation of your account and your trading activity on the Exchange and do not at any time constitute any part of the assets of WineCustody and are held separately from its own assets subject only to the specific rights of recourse to Your wines set out elsewhere in these Terms;

(b) Wines transferred into a WineCustody Account shall be stored with an Accepted Warehouse in WineCustody’s name, such Accepted Warehouse to be designated by WineCustody in its sole discretion.

24.3. All WineCustody Accounts are governed by the terms set forward in the UK Warehousing Association Standard Trading Conditions [http://www.ukwa.org.uk/files/1614/1643/7831/6-conditions-of-contract-sample-6.pdf] and are held at Accepted Warehouses. In this respect WineCustody is not liable to You for anything over and above each Accepted Warehouse’s liability to WineCustody which includes the Warehouse’s storage and transportation insurance. WineCustody is not liable to You for any indirect or consequential loss (including but not limited to loss of goodwill, loss of business, loss of anticipated profits or savings and all other pure economic loss) arising out of or in connection with Your WineCustody Account.

24.4. WineCustody is an independent UK company, a third-party service provider from Yours and WineBourse’s perspective. Therefore WineBourse Limited and WineClear Ltd. are not liable to You for any direct or indirect, consequential or immediate losses arising out of or in connection with Your WineCustody Account. By agreeing to this You indemnify WineBourse, WineClear and all other WineBourse group companies from any claims You might have to WineCustody Ltd.

24.5. You agree to transfer to WineCustody a deposit representing 2 months of storage fees (the “Storage Deposit”) upon landing any new wines into Your WineCustody Account. Subject to deductions which may be made by Us for sums payable under these Terms, the Storage Deposit shall be refunded to You on the closure of Your WineCustody Account or upon sale or other transfer of the wine to which the deposit is related.

24.6. You agree to pay WineCustody : the following custody service fees in advance, at the following rates per calendar month (the “Custody Service Fees”):

(a) ?0.45 (forty-five pence sterling) for each case of wine stored which has a volume no greater than 4.5 litres;

(b) ?0.85 (eighty-five pence sterling) for each case of wine stored which has a volume greater than 4.5 litres but no greater than 9.0 litres; and

(c) for each case stored, which has a volume greater than 9.0 litres, an additional ?0.45 (forty-five pence sterling) shall be payable at each increment of 4.5 litres, for example:

0-4.5 litres ?0.45 per calendar month

>4.5 litres to 9 litres ?0.85 per calendar month

>9 litres to 13.5 litres ?1.30 per calendar month

>13.5 litres to 18 litres ?1.75 per calendar month

>18 litres to 22.5 litres ?2.10 per calendar month

24.7. If You transfer wines from a Private Account to a WineCustody Account you agree to pay the following Private Account Transfer Fee together with the Storage Deposit:

(a) a landing fee shall be payable to WineCustody at the following rates:

(i) ?1.50 (one pound fifty pence sterling) for each case of wine stored which has a volume no greater than to 4.5 litres ; and

(ii) ?3.00 (three pounds sterling) for each case of wine which has a volume greater than 4.5 litres but no greater than to 9.0 litres.

24.8. You agree that WineCustody shall act upon the instructions of WineBourse or WineClear for the purpose of providing the Services to You in accordance with these Terms, including, without limitation, the fulfilment of a Seller’s Contract of Sale under Section 11.3 or a Buyer’s Contract of Sale under Section 19.3.

24.9 You agree that when transferring wines from a Private Account into a WineCustody Account you will ensure that the description of the wine so transferred contains such true, complete and accurate information as is required to enable [WineBourse] to map that wine to the standardised descriptions used by the Exchange and each WineBourse group company. You further agree to indemnify [WineBourse] and each WineBourse group company from all losses, liabilities, damages and other expenses which may arise from any error in the mapping process which derives from the description of the wines which was provided to WineBourse being inaccurate or incomplete. You will be be accountable for checking that the wine descriptions that WineBourse has used are an accurate reflection of the wine transferred into a WineCustody Account and shall advise WineBourse of any errors in such description. Any trading errors and any losses arising (whether sustained by You, any other customer, by WineBourse and any other WineBourse group company) due to wine being wrongly mapped on transfer to a WineCustody Account arising from any inaccuracy in the description provided (whether provided before or after transfer into WineCustody Account) shall be Your responsibility of the user and not of WineBourse or any WineBourse group company.

24.10 Recurring Payments

Should you opt to use WorldPay’s FUTUREPAY service to pay your recurring storage fees in WineCustody the terms are as follows:

  • The payment will be automatically charged monthly on your allocated debit card on the WineCustody storage invoice payment date
  • The payments will be charged on a monthly basis until such time that:
  • a) Your WineCustody account does not have wine or spirits for storage services
  • b) You provide a cancellation request to cease using the FUTUREPAY recurring payment service. This request can be made by emailing info@winecustody.com
  •  

25. Supervisory Committee and Code of Conduct

25.1. The Supervisory Committee is constituted of two executives of WineBourse Group and two independent legal professionals, and is responsible for the monitoring of the exchange, maintaining the code of conduct of the exchange, which is available as Exhibit 1 to this Agreement (the “Code of Conduct”) and regulating compliance with the Code of Conduct.

25.2. You agree to comply with the Code of Conduct at all times.

25.3. Where the Supervisory Committee determines that You are in breach of the Code of Conduct they may impose the following Compliance Sanctions:

(a) Address a Reprimand to You, which will serve as the formal notification of the breach of the Code of Conduct; three reprimands in six month time will lead to Suspension of Your Account;

(b) Put you on a formal Notice, allowing you a specified amount of time to remedy your actions and/or their consequences. Failure to comply with the Notice requirements will lead to Suspension of Your Account;

(c) Suspend Your Account for either a fixed period of time or until certain actions take place;

(d) Reinstate Your Account with or without Probation Period, and finally

(e) Recommend to WineBourse Directors to Terminate this Agreement and put you on the Black List of traders who will be publically banned from WineBourse for life.

25.4. Appeals against any decision of the Supervisory Committee may be made to the Royal Court of the Bailiwick of Jersey.

26. Intellectual Property

26.1. You hereby acknowledge that all intellectual property rights in the Exchange and the Website anywhere in the world belong to WineBourse, that rights in the Exchange and the Website are licensed (not sold) to You, and You have no rights in, or to, the Exchange and the Website other than the right to use the Exchange and the Website in accordance with the Terms.

26.2. You hereby acknowledge that You have no right to access to the Exchange or the Website in source code form or in unlocked coding or with comments.

27. Termination

27.1. Either party may terminate these Terms and thereby Your membership without cause upon giving 1 months written notice.

27.2. We may terminate these Terms and thereby Your membership with immediate effect where:

(a) You fail to pay any undisputed amount due under these Terms, and Seller’s Contract of Sale or any Buyer’s Contract of Sale on the due date for payment and You remain in default not less than 14 days after being notified in writing to make such payment; or

(b) You commit a material breach of Your obligations under the Terms and (if such breach is remediable) You fail to remedy that breach within a period of 30 days after receipt of notice in writing requiring You to do so; or

(c) You commit a series of persistent minor breaches which when taken together amount to a material breach; or

(d) You suspend, or threatens to suspend, payment of Your debts or You are unable to pay Your debts as they fall due or You admit inability to pay Your debts or are deemed unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986; or

(e) You commence negotiations with all or any class of Your creditors with a view to rescheduling any of Your debts, or You make a proposal for or enters into any compromise or arrangement with Your creditors; or

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with Your winding up; or

(g) any of Your creditors or encumbrancers of attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Your assets and such attachment or process is not discharged within 14 days; or

(h) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over You; or

(i) a floating charge holder over Your assets has become entitled to appoint or has appointed an administrative receiver; or

(j) a person becomes entitled to appoint a receiver over Your assets or a receiver is appointed over Your assets; or

(k) any event occurs, or proceeding is taken, with respect to You, in any jurisdiction to which You are subject that has an effect equivalent or similar to any of the events mentioned in Section 27.2(d)to Section 27.2(j)(inclusive); or

(l) You cease, or threatens to cease, to carry on all or substantially the whole of Your business.

(m) Termination of this agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination.

28. Consequences of Termination

28.1. Notwithstanding the termination of these Terms and Your membership, any Seller’s Contracts of Sale or Buyer’s Contracts of Sale outstanding at termination shall remain in place;

28.2. Any amounts owed between You and Us under these Terms shall remain outstanding.

29. Force Majeure

29.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this agreement that is caused by an Event Outside of Our Control. An Event Outside of Our Control is defined below in Section 29.2.

29.2. An Event Outside of Our Control means any act or event beyond Our reasonable control, including without limitation failure of public or private telecommunications networks.

29.3. If an Event Outside of Our Control takes place that affects the performance of Our obligations under this agreement:

(a) Our obligations under this agreement will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside of Our Control; and

(b) We will use Our reasonable endeavours to find a solution by which Our obligations under this agreement may be performed despite the Event Outside of Our Control.

30. Business Customer Limitation of Liability

30.1. You hereby acknowledge that the Services and the Website have not been developed to meet Your individual requirements, and that it is Your responsibility to ensure that the facilities and functions of the Services and the Website meet Your requirements.

30.2. If You are a business customer, We only supply the Services and the Website for internal use by Your business, and You agree not to use the Services of the Website for any re-sale purposes.

30.3. We shall not under any circumstances whatsoever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement for:

(a) loss of profits, sales, business, or revenue;

(b) business interruption;

(c) loss of anticipated savings;

(d) loss or corruption of data or information;

(e) loss of business opportunity, goodwill or reputation; or(f) any indirect or consequential loss or damage.

30.4. Nothing in the Terms shall limit or exclude Our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation;

(c) any other liability that cannot be excluded or limited by English law.

30.5. The Terms sets out the full extent of Our obligations and liabilities in respect of the supply of the Services and the Website. Except as expressly stated in this agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Us. Any condition, warranty, representation or other term concerning the supply of the Services or the Website which might otherwise be implied into, or incorporated in, this agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

31. Consumer Customer Limitation of Liability

31.1. You hereby acknowledge that the Services and the Website have not been developed to meet Your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the Services and the Website meet Your requirements.

31.2. If you are a consumer, We only supply the Services and the Website for domestic and private use. You hereby agree not to use the Services or the Website for any commercial, business or re-sale purposes, and We has no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

31.3. Nothing in the Terms shall limit or exclude Our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation;

(c) any other liability that cannot be excluded or limited by English law.

32. Indemnity

32.1. You shall indemnify Us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Us arising out of or in connection with:

(a) any breach of the warranties contained in these Terms;

(b) Your breach or negligent performance or non-performance of this agreement;

(c) the enforcement of this agreement;(d) any claim made against Us by a third party arising out of or in connection with the provision of the Website and Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by You, your employees, agents or subcontractors;

32.2. This indemnity shall not cover Us to the extent that a claim under it results from Our own negligence or wilful misconduct.

32.3. If any third party makes a claim, or notifies an intention to make a claim, against Us which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim”), we shall:

(a) as soon as reasonably practicable, give written notice of the Claim to You, specifying the nature of the Claim in reasonable detail;

(b) not make any admission of liability, agreement or compromise in relation to the Claim without Your prior written consent (such consent not to be unreasonably conditioned, withheld or delayed), provided that We may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to You, but without obtaining Your consent) if We reasonably believe that failure to settle the Claim would be prejudicial to it in any material respect;

(c) subject to You providing security to Us to Our reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as You may reasonably request to avoid, dispute, compromise or defend the Claim.

32.4. If a payment due from You under this section is subject to tax (whether by way of direct assessment or withholding at its source), We shall be entitled to receive from You such amounts as shall ensure that the net receipt, after tax, to Us in respect of the payment is the same as it would have been were the payment not subject to tax.

32.5. Nothing in this section shall restrict or limit Our general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity

33. Links to Third Party Sites

The Exchange or the Website may contain links to other independent third-party websites (“Third-party Sites”). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Thirdparty Sites, including the purchase and use of any products or services accessible through them.

34. Data Protection

34.1. We operate in compliance with the Data Protection Law 2018. We are data controllers of the information We collect about You (and if applicable your Authorised Users) in connection with your membership and use of the Services or the Website. The information We collect is made up from the details You and others give to Us during your relationship with Us and includes information You give Us during your application for membership, information from your subsequent communications and instructions, and other information We gain from providing You with the Services or the Website. We will use this information for the following purposes:

(a) to provide you with the Services or the Website and to carry out our obligations under these Terms and with respect to any Seller’s Contract of Sale or any Buyer’s Contract of Sale;

(b) to comply with legal and regulatory requirements

(c) to detect, investigate and prevent fraud and to trace debtors; and

(d) for internal analysis and research.

34.2. We may disclose Your personal information to:

(a) our agents and service providers for the purposes set out in Section 34.1;

(b) credit reference agencies, the police, Government departments and agencies for the purposes set out in Section 34.1(c) ; and

(c) any person for the purposes set out in Section 34.1(b).

34.3. We will take appropriate steps to help prevent the loss, misuse or unauthorised disclosure of the information We collect about You and will try, with your help, to keep such information accurate and up to date.

34.4. You have the right to ask for a copy of the information We hold about You (for which a small fee may be charged). If You find at any time that any of the information We hold about You is incorrect then You should notify Us and We will correct the inaccuracy.

34.5. Before You or a third party on your behalf gives Us any personal information about your Authorised Users (where applicable) you must inform them that you are giving the personal information to Us and that it will be used in the manner and for the purposes described above and you must obtain their informed consent to such use.

34.6. Where You use a promotional code generated for Your use as a result of having been referred as a potential Client by a third party or existing Client (Referrer) on terms between Us and that Referrer which provide for that Referrer to receive commission credits the value of which is dependent upon Your trading activity on the Exchange, You agree that Your use of that promotional code constitutes Your consent to the disclosure to the Referrer of Your use of that promotional code. Furthermore, You consent to the disclosure to the Referrer of the aggregate traded value and aggregate commissions paid from trades which may be made by You on the Exchange for the purposes of the Exchange’s and the Referrer’s calculation of the commission credits due to the Referrer arising from Your trading activity.

35. Severability

35.1. If any provision (or part of a provision) of the Terms are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

35.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

36. Waiver

36.1. A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

36.2. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

37. No Partnership

37.1. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

37.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

38. Remedies

38.1. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

39. Communications Between Us

39.1. When We refer, in these Terms, to "in writing", this will include e-mail.

39.2. If You are a consumer:

(a) To cancel a Contract in accordance with your legal right to do so as set out in Section 23, please contact Us by telephone or in writing by sending an e-mail to [info@winebourse.com] or by sending a letter to WineBourse, 80 Coleman Street, London, EC2R 5BJ. You may wish to keep a copy of your cancellation notification for your own records. If You send Us your cancellation notice by e-mail or by post, then your cancellation is effective from the date We receive Your e-mail or the letter to Us. If You call Us to notify Us of your cancellation, then your cancellation is effective from the date You telephone Us.

(b) If You wish to contact Us in writing for any other reason, you can send to Us an e-mail to [info@winebourse.com] or a letter to WineBourse, 17, the Esplanade, St. Helier, Jersey JE1 1WT . You can always contact Us using our Customer Services telephone line.

39.3. If We have to contact You or give You notice in writing, we will do so by e-mail or by pre-paid post to the address You provide to Us in accordance with Sections 6.2or 6.4.

39.4. If You are a business:

(a) Any notice or other communication given by You to Us, or by Us to You, under or in connection with these Terms, a Seller’s Contract of Sale or a Buyer’s Contract of Sale shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, e-mail, or posted on the Website.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at Our registered office; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by e-mail, one Business Day after transmission; or, if posted on the Website, immediately.

(c) In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

(d) The provisions of this section shall not apply to the service of any proceedings or other documents in any legal action.

40. Arbitration

40.1. Any dispute arising out of or in connection with the Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which rules are deemed to be incorporated by reference into this section.

40.2. The number of arbitrators shall be one.

40.3. The seat, or legal place, of arbitration shall be London, United Kingdom.

40.4. The language to be used in the arbitral proceedings shall be English.

40.5. The governing law of the contract shall be the substantive laws of England and Wales.

41. Entire Agreement

41.1. The Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.41.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

42. Governing Law

42.1. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

43. Jurisdiction

43.1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

Exhibit 1. Code of Conduct of Winebourse Members

Part I: Business Hours and Days

• The official recognized closing hour of WineBourse will be set at 4:00 PM London. All official price and volume records for a given date are taken at that time. All trading after 4:00 pm and before midnight is attributed to the next calendar date.

• For the purposes of determining settlement periods and maintaining business day count the official recognized holidays of WineClear follow the UK official holiday schedule.

Part II: Personal Conduct

• Traders will be held accountable for any actions or discussions which break fair market practices and/or damage the reputation of any market participant and their profession.

• Traders should not relay any information that they know to be false and should take great care when discussing unsubstantiated information that they suspect could be inaccurate and which could be damaging to a third party.

• Traders bear responsibility for maintaining confidentiality and without explicit permission from the parties involved, they should not disclose or discuss any information relating to deals transacted on WineBourse, in the process of being transacted, or in the process of being arranged, except to or with the counterparties involved.

• Traders should not, with intent or through negligence, profit or seek to profit from confidential information, nor assist anyone with such information to make a profit for themselves or their clients. Hence, all market participants have a duty to familiarise themselves with the requirements of the and regulations governing insider dealing and market abuse as stated in Directive of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (No 2003/6/EC).(“Market Abuse Directive”).

• All market participants, whether acting as principal, agent or broker, have a duty to post firm prices on WineBourse, not indicative levels. A trader quoting a firm price is committed to deal at the price and in the amount specified. A trader who quotes a spread is bound to deal at the quoted price difference in both selling and buying parts of the transaction. A trader who quotes a specialist price is bound to deal at the bid and the offer side of his market in the amounts specified.

• It is not an acceptable practice for a buyer to reject a wine delivery for any reason except if Non-Conforming Wine has been delivered and only if this fact has been documented via a full condition report. Such behaviour would be immediately reported to the Supervision Committee with a recommendation to Terminate the trader’s agreement with WineBourse.

• Breach of any part of this Code will be immediately reported to the Supervision Committee and WineBourse administration will make a recommendation with regard to the disciplinary action to be taken.

Part III:  Supplemental Terms and Conditions Applying to the Trading of Spirits on the Exchange “Spirits Terms” - January 3, 2017

• These Spirits Terms incorporate the Winebourse terms and conditions set out at http://www.winebourse.com/TermsAndConditions (“the Terms”) save as specifically modified and varied herein and the Terms shall apply, mutatis mutandis, to trading in Spirits on the Exchange as they apply to the trading of wine as modified and varied by these Spirits Terms. Capitalised terms used in these Spirits Terms shall bear the meanings given in the Terms save as specified otherwise.


• In these Spirits Terms, “Spirits” means fine and/or rare alcoholic spirits drinks intended for human consumption produced by distillation of alcohol liquids or other methods with an alcohol by volume content equal or greater to 22% or otherwise classified as spirits by the United Kingdom HM Revenue & Customs. As at the date of these Spirits Terms, UK excise duty on spirits (“Spirits Duty”) is levied at the rate of £27.66 per litre of pure alcohol. The level of UK Spirits Duty will vary from time to time and You are advised to check the applicable level of Spirits Duty before making purchases In Bond.

• Spirits may be traded on the Exchange either Out of Bond or In Bond but subject always to being held in custody at an Accepted Warehouse within the EEA. Please note that, unless specifically stated otherwise in relation to any particular Spirit offered for sale on the Exchange, an item being sold In Bond or Out of Bond does not imply that any applicable customs duty which may be levied (in addition to Spirits Duty and VAT on items sold In Bond) on the movement of those items has been paid. The payment of outstanding customs duty will be an obligation of the Buyer and Buyers are therefore advised to make themselves aware of the extent of that liability before purchasing Spirits from outside the EU or moving those items from within the EU to countries outside the EU.

• Spirits may be traded as individual bottles as well as in full cases. Cases shall not be required to be original wooden cases or other original case packaging. Please see further below for provisions relating to settlement and storage costs and transaction costs relating to cases and individual bottles.

• The provisions in the Terms relating to Pristine Condition shall not apply to trading in Spirits save that the capsules and labels must be original, undamaged, unblemished and unmarked. The Seller further warrants to Us in the terms of paragraph 10.1 of the Terms in respect of the Spirits. No condition report shall be required in respect of a trade of Spirits and a Buyer shall not be entitled to require a condition report.

• Spirits which were produced prior to 1990 may be traded on the Exchange.

• Seller’s Transactions and Settlement Fees for Spirits The greater of £30 (thirty pounds sterling) or 6% of the sale price of the Spirits shall be payable by the Seller to WineClear as a transaction fee on entry into the Seller’s Contract of Sale (the “Seller’s Transaction Fee”) other than in respect of Specialist Offers details of the transaction fees for which are set out below. Where the Seller’s Spirit is delivered to WineCustody’s Account from an account which is not a WineCustody Account, a settlement fee (the “Seller’s Settlement Fee”), shall be payable by the Seller to WineClear and shall be calculated on the following basis: (a) £4 (four pounds sterling) for each case (full or partial or mixed) of Spirit delivered which has a volume no greater or equal to 4.5 litres; and (b) £4.00 (four pounds sterling) for each individual bottle of Spirit not within a case and which has a volume no greater or equal to 4.5 litres.

• Buyer’s Transaction Fees for Spirits The greater of £30 (thirty pounds sterling) or 6% of the sale price shall be payable by the Buyer to WineClear as a transaction fee on entry into the Buyer’s Contract of Sale (the “Buyer’s Transaction Fee”) other than in respect of Specialist Offers details of the transaction fees for which are set out below.

• Custody Services and Custody Fees You agree to pay WineCustody the following custody service fees in advance, at the following rates per calendar month (the “Spirits Custody Service Fees”) with effect from the transfer of Spirits into a WineCustody Account (whether from a Private Account in an Accepted Warehouse or otherwise): (a) £0.425 (forty-two and one half pence sterling) for each case (full, partial or mixed) of Spirit stored which contains an aggregate volume of Spirits of no greater than 4.5 litres; (b) £0.425 (forty-two and one half pence sterling) for each individual bottle, not being part of a case (full, partial or mixed), of Spirit stored which contains an aggregate volume of Spirits of no greater than 4.5 litres; and (c) for each case stored which contains an aggregate volume of Spirits exceeding 4.5 litres, an additional £0.425 (forty-two and one half pence sterling) shall be payable as additional Spirits Custody Service Fee in respect of each subsequent part of 4.5 litres over 4.5 litres (ie. the total monthly cost of storage of a case containing 5 litres of Spirit would be £0.85 (eighty five pence sterling) and the total monthly cost of storage of a case containing 10 litres of Spirit would be £1.275 (one pound twenty-seven and one half pence sterling)).

• Landing Fees Spirits may be consigned to WineCustody in mixed or partial cases. If You transfer spirits from a Private Account to a WineCustody Account you agree to pay the following Landing Fee together with the Storage Deposit: (i) £1.50 (one pound fifty pence sterling) for each case (full, partial or mixed) of Spirit which has a volume no greater than to 4.5 litres and for each individual bottle which is not part of a case; and (ii) £3.00 (three pounds sterling) for each case (full, partial or mixed) of Spirit which has a volume greater than 4.5 litres but no greater than to 9.0 litres and for each individual bottle which is not part of a case.

• Where a Seller wishes to make a sale of individual bottles of Spirit which were previously part of a case, an additional Landing Fee will be charged to cover the separation and repacking of the Spirit and such additional Landing Fee shall be charged at the rate set out above in respect of the individual bottles concerned. The Seller’s listing for sale of an individual bottle previously contained within a case shall constitute and be deemed a request to WineCustody to undertake the separation and repacking of the relevant bottles and acceptance of the incurrence of the additional Landing Fee with effect from the date of that deemed request.

• Specialist Offers For trades in Spirits by way of Specialist Offer the transaction fees shall be the greater of £30 (thirty pounds sterling) or 2% of the sale price of the Spirits.
 

Copyright © 2013 WineBourse Ltd. All rights reserved.

 

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