Whisky Foundation – Terms & Conditions
This Site is operated and owned by Gallery Alcohol Trading Limited trading as Whisky Foundation (“Whisky Foundation“). Your access to and use of the Site is subject to these Terms and Conditions. Use of the Site indicates your acceptance of these Terms and Conditions. Please read them carefully before using the Site.
In these Terms and Conditions the following words and phrases shall have the following meanings, unless the context otherwise requires:
- “Intellectual Property Rights” means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, software, business and domain names, inventions and other results of intellectual activity related to or connected with the Site;
- “Order” means an Order for a Product;
- “Product” means any item or items available for purchase from the Service;
- “Whisky Foundation” means Gallery Alcohol Trading Limited trading as Whisky Foundation;
- “Service” means the sale of “Goods” means the spirit, whisky, art and alcoholic beverages as governed by these Terms and Conditions;
- “Site” means www.WhiskyFoundation.com and all parts and pages of it and/or the use of the Service;
- “Software” means the software owned or licensed by Whisky Foundation which forms part of the Site and includes any software which is required by, relevant to, or used in conjunction with the Site including but not limited to all object and source codes, copyright, inventions, discoveries, novel designs whether or not registrable as designs or patents, including any invention of or development or improvements to equipment, technology, methods or techniques relating to the software;
- “Us” means Whisky Foundation and ‘we’ or ‘our’ shall be interpreted accordingly;
- “You” means the person or entity that accesses the Site and ‘your’ shall be interpreted accordingly.
- Your use of this Site is by non-exclusive licence granted by Whisky Foundation strictly in accordance with these Terms and Conditions.
- You acknowledge and agree with Whisky Foundation that You will not, as a result of being granted a non-exclusive license, acquire any rights (including without limitation Intellectual Property Rights) in the Software or the Site other than the non-exclusive rights granted in accordance with these Terms and Conditions.
- The Site is available only to, and may only be used by, individuals who can form legally binding contracts and purchase alcohol under their applicable law. If you do not qualify, please do not use our services.
- In Order to use this Site, You require the equipment and connections necessary to access the World Wide Web. Without limitation, You are responsible for:
- the provision of any such connection or access to the World Wide Web;
- the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and
- the provision of all equipment necessary for you to make any such connection to the World Wide Web, including a computer and a modem.
Ordering a Product
- An Order can be made by whatever means with an authorized agent of Whisky Foundation or directly by You through the Site. This Order does not form a contract between us.
- Whisky Foundation reserves the right to reject or amend any Order made in its absolute discretion for any reason, including in the event of unavailability. Receipt of any Order by Whisky Foundation is not effective until it is confirmed and accepted in writing by way of email, by Whisky Foundation to You. Upon transmission of that email a contract is formed between us and subject to payment by you of the invoiced amount, we are obliged to provide the Product to you in accordance with these Terms and Conditions.
- Subject to cause 3(e), no Order which has been accepted by Whisky Foundation in accordance with clause 3(b) may be cancelled by You.
- Whisky Foundation’s employees or agents are not authorised to make any representations concerning the Products unless such representations are confirmed by Whisky Foundation in writing. You shall at all times not rely on any representations by Whisky Foundation’s employees or agents unless such representations have been confirmed in writing by Whisky Foundation.
- An Order made may be cancelled by You if within seven (7) days of the acceptance of the Order by Whisky Foundation, You give Whisky Foundation a notice in writing of the cancellation. The cancellation by You shall be subject to You indemnifying Whisky Foundation in full against all loss, damages, charges and expenses incurred by Whisky Foundation as a result of the cancellation.
Pricing and Payment
- You must pay for the Product in full at the time you place and Order. Your payment extends to payment of the Product and shipping in respect of the Product. You will also be required to pay any duties or taxes which attach to the supply and delivery of the Product, including but not limited to custom duties. You acknowledge and agree that Products can be delivered as “collectible glassware,” “collectible malt” or others at the Whisky Foundation shipper’s decision.
- Products may be sent direct to You from any country and warehouse of Whisky Foundation’s choosing. Payment for the Products shall be made by the method designated by the Site or the Whisky Foundation office.
- Whisky Foundation reserves the right, by giving notice to You at any time before delivery of the Products, to increase the price of the Order to reflect any increase in the cost to Whisky Foundation which is due to any factor beyond the control of Whisky Foundation (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of transportation), any change in delivery dates, quantities or specifications for the Order which is requested by You, or any delay caused by any instructions of You or failure of You to give Whisky Foundation adequate information or instructions. You will make payment of such amounts immediately on demand by Whisky Foundation and in any event prior to shipping of the Products.
You must undertake your own research and enquiries in relation to any items you purchase on the Site.
Delivery, Risk and Title
- Any delivery date specified by Whisky Foundation for delivery of the Products is approximate only, and Whisky Foundation shall not be liable for any delay in the delivery of the Products. Time for delivery shall not be of the essence to the contract unless previously agreed by Whisky Foundation in writing. The Products may be delivered in advance of the delivery date specified; Whisky Foundation is not responsible for late delivery by the courier company.
- If You fail to take delivery of the Products or fail to give Whisky Foundation adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to Whisky Foundation, Whisky Foundation may:
- store the Products until actual delivery and charge You for the reasonable costs (including insurance) of storage; or
- sell the Products at the best price readily obtainable and charge You for any shortfall below the price meant to be paid by you and the costs of sale.
- Any advice or recommendation given by Whisky Foundation or its employees or agents to You or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by Whisky Foundation is followed or acted upon entirely at Your own risk, and accordingly Whisky Foundation shall not be liable for any such advice or recommendation which is not so confirmed. The information provided on the Site is of a general nature only, and we do not warrant that the information is correct or accurate.
- If a Product you purchase is to be delivered by Whisky Foundation to a place nominated by you, the risk in such item will pass to you:
- when it is delivered; or
- if we are unable to deliver the item to the place nominated by you for any reason, (for example if no one is present to accept delivery), when we or our carrier first attempt to deliver the item.
- Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Terms, the property in the Products shall not pass to You until Whisky Foundation has received payment in full for the Products and all other Products agreed to be sold by Whisky Foundation to You for which payment is due.
- Until such time as the property in the Products passes to You, Whisky Foundation shall be entitled at any time to require You to deliver up the Products to Whisky Foundation within 1 business day of being requested to do so and, if You fail to do so, Whisky Foundation shall enter any premises of You or any third party where the Products are stored and repossess the Products.
- To the extent permitted by law, unfortunately we are unable to provide a refund or exchange in respect of any Product Ordered.
System Integrity & User Conduct
- You must not use the Site to:
- impersonate or otherwise misrepresent Your identity or affiliation with any other person or entity;
- input, upload, post, disclose or transmit any material that is defamatory, obscene, indecent, lewd, pornographic, violent, abusive, insulting, threatening, harassing or misleading or deceptive;
- input, upload, post, disclose or transmit any material which is subject to Intellectual Property Rights of Whisky Foundation or any third party or breaches any duty of confidence or contractual obligation owed to Whisky Foundation or any third party;
- input, upload, post, disclose or transmit any material that is unlawful or violates any law;
- send junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of any spam legislation to any person or company;
- download and store electronically, reproduce, transmit, display, copy, distribute or use the Software or any materials contained in the Site;
- upload any files that contain viruses, Trojan horses, worms, time bombs, corrupted files or any other similar software or programs that may damage the operation of the Site or another’s computer or property of another;
- sub-license, rent, lease, transfer or attempt to assign the rights in the Site or the Software to any other person and any dealing in contravention of this sub-clause shall be ineffective;
- falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Site;
- conduct, display, or forward surveys, contests, pyramid schemes, or chain letters;
- interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site;
- attempt to gain unauthorised access to the Site or computer systems or networks connected to the Site through any means;
- commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
- collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses; or
- breach any privacy legislation;
- contravene or breach any applicable state, Commonwealth or international law, convention or regulation.
- You acknowledge and agree that You must not:-
- use the Site for any purpose other than the purpose for which it was designed and intended;
- commit or permit any act which may interfere with the use of the Site by any other user;
- tamper with, hinder the operation of or make unauthorised modifications to the Site or any part thereof;
- damage or modify the Software or the Site or any part thereof;
- reverse engineer, decompile or disassemble the Software or the Site or any part thereof;
- copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Software or any content within the Site or any part thereof; or
- modify, alter, adapt, disassemble, reverse engineer, decompile or amend the Software or any content within the Site or any part thereof in any way.
- You must not without prior written consent of Whisky Foundation which shall be given, given with conditions or withheld at Whisky Foundation’s absolute discretion affix or otherwise display Your name or logo on the content of the Site or any other website in a way that suggests a direct or indirect association with Whisky Foundation and/or any content provider to the Software or the Site.
- You must not use the Site to:
Links & Advertising
- This Site may contain links to third party websites. Those websites are not under the control of Whisky Foundation and Whisky Foundation is not responsible for the content of the links contained in those websites or any webcasting or other transmission received from any such websites.
- Neither Whisky Foundation nor its officers, directors, employees, agents, or related bodies corporate recommend or endorse the content of any third party websites which may be linked to or from the Site, or products or services of any third party organisations mentioned or described on this Site or linked to or from this Site. You acknowledge that you enter any third party websites at your own risk.
- The Site may contain advertisements for third parties’ Products and/or services. The third party advertisers are responsible for the accuracy of all representations made in those advertisements. Neither Whisky Foundation nor its officers, directors, employees, agents or related bodies corporate recommend or endorse the Products or services that may be advertised on the Site, nor do they offer the Products or services for sale or make any other representation whatsoever about them. If you choose to Order a product or service advertised by a third party on the Site, you do so at your own risk.
- You must not link the Site from any other website not owned or operated by Whisky Foundation without prior written consent from Whisky Foundation.
Intellectual Property Rights
- The information, names, text materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, and control features of the Site (the “Content”) is protected by Intellectual Property Rights.
- The Content, the Software and the Site are protected by Intellectual Property Rights. You acknowledge that Whisky Foundation is the owner of these rights, with Our affiliates or other third party licensors.
- All product and company names and logos contained within the Site are the trade marks, service marks or trading names of their respective owners, including Whisky Foundation.
- You acknowledge and agree that no right, title or interest in any of the Intellectual Property Rights in the Content, the Software or the Site is transferred or granted to You, other than the rights granted expressly by these Terms and Conditions.
- You agree that:-
- any Intellectual Property Rights created, formulated or discovered by You through the use or access to the Software or the Site will be the sole and exclusive property of Whisky Foundation;
- You will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the Intellectual Property Rights created under to us.
- The Whisky Foundation logo and name are owned by Us, and may not be used as part of your business or in connection with any Products or services without the prior written consent of Whisky Foundation which shall be given, given with conditions or withheld at Whisky Foundation’s absolute discretion.
Your use of the Site or Your completion of any forms or tables on the Site does not automatically create a relationship of any sort between You and Whisky Foundation, including that of client and agent.
- Whisky Foundation does not warrant that:
- the Site will provide any function for which it is not specifically designed;
- the Software or the Site will provide any minimum level of performance;
- the Site will be virus free or free of performance anomalies or be operational without interruption;
- the Products are fit for any purpose, including human consumption;
- the quality or freedom from defect or deterioration of the Products, either at the time of delivery or deemed delivery or at the time of collection by You; and
- the market value or appreciation in value of the Products; or that the Products comply with any description of the Products in any marketing materials or packaging or the information on any label or that the Products comply with any sample.
- You warrant to Us that at the time of entering the Site, You were not relying on any representation made by Us.
- Except as expressly provided to the contrary, and to the extent permitted by law, We make no representations or warranties of any kind, express or implied as to the operation of Your access to or the results of Your access to the Software or the Site (including any related or linked websites) or the correctness, accuracy, timeliness, or completeness or reliability of the information, content, materials or Products included on the Site.
- Whisky Foundation does not warrant that:
Disclaimer and Limitation of Liability
- To the extent permitted by law, the Site is provided by Whisky Foundation on an “as is” basis without any express or implied warranty of any kind.
- The Software or the Site may contain inaccuracies or typographical errors.
- The World Wide Web exists across open public networks that are neither secure nor private. Accordingly, You acknowledge and accept the risk that any communication to or from the Site may be intercepted, used or modified by third parties.
- Whisky Foundation may change any of the material on the Site at any time without notice.
- Whisky Foundation makes no commitment to update any material on the Site.
- You are responsible for assessing the reliability, accuracy, completeness, timeliness, suitability, quality, physical state or for a particular purpose of the material on or accessible through the Site.
- You accept all risks and responsibility for all loss, damage, costs and other consequences resulting from Your use of the Site or the material on or accessible through the Site.
- Where the laws of any country or state in which these Terms and Conditions are effective implies into these Terms and Conditions any term, condition or warranty, and those laws avoid or prohibit provisions in a contract excluding or modifying them, then the term, condition or warranty shall be deemed to be included in these Terms and Conditions provided that the liability of Whisky Foundation, its officers, directors, employees, agents and related bodies corporate for a breach of any such term, condition or warranty, including any economic or consequential loss which You may sustain shall be limited, at the option of Whisky Foundation, to:
- in the case of services, the supply of the services again, or the payment of having the services resupplied; and
- in the case of Products, the replacement or repair of the Products, the supply of equivalent Products, or the payment of the costs of replacing or repairing the Products or acquiring equivalent Products.
- In the event of force majeure Whisky Foundation shall not be required to deliver the Products to You, and instead will offer you a refund of any amounts paid.
- You release Whisky Foundation and its officers, directors, employees, agents or related bodies corporate from its liability for any loss or damage including without limitation, losses or damages for loss of profits, business interruption, loss of information, indirect, special, punitive or consequential losses or damages arising out of the use or inability to use or reliance on the material or information available on or accessible through the Site, even if Whisky Foundation has been advised of the likelihood of such damages and whether or not caused by any negligent act or omission.
- Without limiting Clause 12(i), You release us from any loss or damage (including indirect, special or consequential loss or damage) arising from the use of, or reliance on, the Software or the Site, whether or not caused by any negligent act or omission including but not limited to:-
- loss of use, data or profits on any theory of liability arising out of or in connection with the use of or the inability to use the Software or the Site;
- Your reliance on the Software or the Site;
- the statements or actions of any employee or agent of Whisky Foundation;
- any unauthorised access to or alteration of Your transmissions or data;
- any information that is sent or received or not sent or received;
- any failure to store or loss of data or files or other content;
- Your fraudulent, negligent or otherwise unlawful behaviour;
- information, data or other material provided to the Owner by the Licensee or on the Licensee’s behalf;
- any delay or interruption of the Software or the Site;
- any loss incurred as a result of a third party obtaining Your access details, either with or without Your knowledge;
- any loss or damages in relation to the supply of services on or in relation to this Site and any advertisement placed on the Site or information made available on the Site.
You agree to indemnify and hold harmless Whisky Foundation, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against all losses, damages, expenses and costs (including solicitor client costs on a full indemnity basis) and all third-party claims, liability, losses, damages, expenses and costs arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified in relation to or in connection with Your use of the Site or the Software or Your failure to comply with these Terms and Conditions, or from your violation of any applicable law.
Breach and Termination
- If Whisky Foundation reasonably considers that You are using the Site in breach of these Terms and Conditions, Whisky Foundation reserves the right to remove any infringing data, file, content or material from the Site and Whisky Foundation shall have no liability to You.
- Whisky Foundation reserves the right to deny You access to, or use of, all or part of the Site, without prior notice, if you engage in any conduct that Whisky Foundation believes, in its sole discretion:
- violates any term or provision of these Terms and Conditions; or
- violates the rights of Whisky Foundation or any third party; or
- is otherwise inappropriate for continued access and use of the Site.
- Whisky Foundation may terminate Your right to access to, or use of, all or part of the Site, immediately on written notice to You if You:
- commit a material breach of these Terms and Conditions, which is capable of remedy, and You fail to remedy the breach within a reasonable time of a written notice to do so; or
- commit a material breach of these Terms and Conditions which cannot be remedied; or
- are repeatedly in breach of these Terms and Conditions; or
- are the subject of a bankruptcy Order, or become insolvent, or make any arrangement or composition with or assignment for the benefit of your creditors, or if You go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over your assets.
- On termination or expiry of this Agreement Your right to use the Site shall cease.
- Termination of your access to the Site shall be without prejudice to the rights of the parties accrued before termination. All restrictions imposed on you, disclaimers and limitations of liability set out in the Terms & Conditions will survive termination.
- Unless otherwise expressly stated herein, a person who is not a party to the contract between us has no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term of this contract.
- Publication of electronic addresses on this Site is for the purpose of professional communication only and must not be used to infer consent to the receipt of unsolicited commercial electronic messages.
- Whisky Foundation may from time to time amend, update, or change the Site, including these Terms and Conditions, without prior notice.
- Whisky Foundation shall not be liable by reason of the failure in the performance of obligations under the Terms and Conditions by reason of strikes, riots, fire, explosion, acts of God, governmental action, or any other cause which is beyond the reasonable control of Whisky Foundation, including any form of technological failure or the actions of third parties.
- These Terms and Conditions constitute the entire agreement between you and Whisky Foundation with respect to this Site, and the Terms and Conditions replace all prior or contemporaneous understandings or agreements, written or oral, regarding the Site.
- No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
- If any provision of these Terms and Conditions is found to be invalid or unenforceable, that provision shall be enforced to the maximum extent possible and will be deemed deleted to the extent that it is not enforceable, and the remaining provisions of the Terms and Conditions shall remain in full force and effect.
- The failure by Whisky Foundation to insist upon or enforce strict performance of any of these Terms and Conditions will not be construed as a waiver of any right or remedy of Whisky Foundation in respect of any existing or subsequent breach of these Terms and Conditions.
- No waiver by a party of a provision of this Agreement is binding unless made in writing.
- The laws of London govern these Terms and Conditions. You hereby consent and submit to the non-exclusive jurisdiction and venue of the Courts of London for any cause of action relating to or arising under these Terms and Conditions.
- Where possible, the obligations of the parties under this Agreement will indefinitely survive the finalisation or discontinuance of this Agreement.
- This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
- The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.
- The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
- The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
- Any notice or demand in writing required to be given by the Owner to the Licensee shall be sufficiently served if:-
- Served personally or by pre-paid mail to the Licensee’s address;
- Sent by facsimile machine to the Licensee’s facsimile machine;
- Sent in electronic form by email to the Licensee’s email address; or
- Published by notice on the Site.