Terms and Conditions
Fizztopia PTY LTD ABN 72 642 734 727
Liquor License Number 32067448
TERMS OF SERVICE
Fizzztopia is only available to Customers over the legal drinking age (18 years).
The Company provides the Fizztopia online store where Customers can purchase champagne, subscriptions to the Fizztopia Champagne Club, and such other products that the Company may offer from time-to-time. Use of Fizztopia is subject to these Terms of Service.
1.1 The following definitions apply in this document:
(a) Agreement means these Terms of Service.
(b) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(c) Company means Fizztopia Pty Ltd ABN 72 642 734 727
(d) Customer means a customer of Fizztopia.
(e) Customer Account means an account on Fizztopia created by the Customer, or created by the Company following use of Fizztopia by the Customer.
(f) Customer Content means content that is entered into or created within Fizztopia by the Customer.
(g) Fizztopia means the Fizztopia online store where Customers can purchase champagne, subscriptions to the loyalty program, and such other products that the Company may offer from time-to-time, usually available from Fizztopia.
(h) Intellectual Property means all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
(i) Item means any item available for purchase via Fizztopia.
(j) Order means an order for one or more Items placed by a Customer via Fizztopia during the same shopping session.
(k) Pricing means the pricing set out in this agreement or as notified to the Customer in writing by the Company from time-to-time.
(m) Site means the website https://fizztopia.com.au, or such other URL operated by the Company from time-to-time.
(n) Special Conditions means any special conditions agreed to by the parties that shall apply to this Agreement.
(o) Loyalty Program means a membership to the Fizztopia Loyalty Program.
(p) Term has the meaning described in clause 2.1(d).
(q) Tracking Information means any information provided by the Company to a Customer in order to track a shipped Order.
2 USING FIZZTOPIA
(a) Use of Fizztopia is always subject to the Customer’s ongoing acceptance and adherence to these Terms of Service.
(b) The Customer agrees and warrants that they are over the legal drinking age, and that they will not supply any alcohol purchased through Fizztopia to minors.
(c) Customers may use Fizztopia to:
i Purchase sparkling wine, beer, cider, seltzer, non-alocholic drinks, glassware and such other products that the Company may offer from time-to-time; and/or
ii Subscribe to the Loyalty Program
(d) The term of the Customer’s licence to access Fizztopia shall be ongoing unless terminated in accordance with this Agreement (Term).
(e) In order to use Fizztopia, the Customer must create a Customer Account.
3 ONLINE STORE TERMS
3.1 A Customer may purchase various available Items online from Fizztopia.
3.2 The Customer’s ability to purchase any Items from Fizztopia is subject to availability. The Company will endeavour to ensure that Items listed on Fizztopia are in stock, but reserves the right to cancel any Orders it is unable to fulfil.
(a) Pricing for each Item shall be as described on Fizztopia as updated from time-to-time.
(b) Pricing shall be confirmed at the time that the Customer completes payment.
(c) The Company is under no obligation to maintain Pricing for any product prior to confirmation of an Order.
3.4 Purchase, Payment & Order
(a) An Order is confirmed when the Customer completes payment for the Item(s) and for shipping.
(b) All payments shall be made via the online payment gateway on Fizztopia or in such other manner as the Company may direct from time-to-time
(c) Unless expressed otherwise, the pricing for each Item shall be deemed inclusive of GST.
(d) The Company will provide the Customer with a Tax Invoice for each Order.
4 LOYALTY PROGRAM TERMS
4.1 There is no fee for participation in the Loyalty Program. Points can be exchanged for value per the program outlined on the website.
5 SHIPPING & DELIVERY
(a) The Company shall advise the Customer of any shipping fees prior to payment of any Item on Fizztopia.
(b) The Company may not ship to all locations, and will advise the Customer if a delivery address is not in a location where the Company ships to, prior to confirming the Customer’s purchase.
(c) The Customer must provide the Company with accurate shipping information.
(d) The Company will advise the Customer of the day on which delivery is expected to be made (Delivery Day). The Customer agrees that any representation regarding delivery dates or times are best estimates only, and the Company is not liable for any Deliveries not made at the represented date or time.
(e) The Customer may be required to present a proof of identification to the courier at the point of delivery.
(f) Items will be delivered to the entrance of the Delivery Address. The Customer authorises the Company to instruct its shipping agent to leave the Items at the Delivery Address if the premises is unattended at the time of delivery.
(g) The Customer agrees that delivery occurs when the Item(s) have been delivered to the Delivery Address. Risk in the Item(s) transfers to the Customer upon delivery.
(h) If the Item(s) cannot be delivered, the Company will contact the Customer to arrange for a re-delivery. The Customer agrees that additional shipping fees may be charged for re-delivery, as per Fizztopia’s standard shipping fees.
(i) The Company will provide the Customer replacement of Items in the event of any loss, damage or deterioration to the Items during the dispatch process and before the completion of delivery. The Company may advertise its replacement and refund policies on Fizztopia, as varied from time-to-time, which it agrees to honour.
(j) The Customer agrees to take on the risk for the Items such as loss, damage or deterioration from the point that the Items reach the Delivery Address.
5.2 Package Tracking
(a) The Company may provide the Customer with tracking information relative to a shipped Package (Tracking Information) if available.
(b) Where the Company provides Tracking Information, it does so as a courtesy only and takes no responsibility as to the accuracy of any Tracking Information. The Customer agrees that Tracking Information will be provided by a third party shipping agent.
(c) The Customer acknowledges that any tracking information is sourced from a third-party shipping company and that the Company shall not be liable under any circumstance in relation to that tracking information.
(a) The Company does not provide refunds or accept returns for a change of mind or dislike for the Item(s) except where required by law, or as otherwise provided for under this Agreement.
(b) The Customer may notify the Company if:
i Item(s) are not received; or
ii The Item(s) arrived damaged or spoiled within the Delivery Day; or
iii The Customer otherwise believes that they are entitled to refund or exchange under any applicable law.
(c) The Company will then advise the Customer whether they qualify for a refund or an exchange on a return.
(d) If a Customer qualifies for a refund the Company will provide instructions on how to return the Item(s). The Customer may then dispatch the Item(s) for exchange or refund back to the Company in accordance with those instructions.
(e) Except where the obligation to provide a replacement is due to the fault of the Company, the Customer is responsible for shipping the Item(s) back to the Company.
6 GENERAL CONDITIONS
(a) By accepting the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive and revocable licence to access and use Fizztopia for the duration of the Term, in accordance with the terms and conditions of this Agreement.
(b) The Company may issue the licence to the Customer on such further terms or limitations as it sees fit.
(c) The Company may revoke or suspend the Customer’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the Customer.
6.2 Modification of Terms
The Company may from time-to-time update the terms of this Agreement in its sole discretion. Unless stated otherwise by the Company in writing, such updates shall come into effect for use of Fizztopia the next time that the Customer uses Fizztopia.
(a) The Company provides Customer support for Fizztopia via the email address email@example.com
(b) The Company shall endeavour to respond to all support requests within 2 Business Days.
6.4 Use & Availability
(a) The Customer agrees that it shall only use Fizztopia for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that the Company deems unreasonable in its discretion.
(b) The Customer is solely responsible for the security of its username and password for access to Fizztopia. The Customer shall notify the Company as soon as it becomes aware of any unauthorised access of its account.
(c) The Customer agrees that the Company shall provide access to Fizztopia to the best of its abilities, however:
i Access to Fizztopia may be prevented by issues outside of its control; and
ii It accepts no responsibility for ongoing access to Fizztopia.
(a) Security. The Company takes the security of Fizztopia and the privacy of its Customers very seriously. The Client agrees that the Client shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
(b) Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the Client to ensure that any transmission standards meet the Client’s operating and legal requirements.
(c) Storage. Data that is stored by the Company shall be stored according to accepted industry standards.
(d) Backup. The Company shall perform backups of its entire systems in as reasonable manner at such times and intervals as is reasonable for its business purposes. the Company does not warrant that it is able to backup or recover specific Client Data from any period of time unless so stated in writing by the Company.
6.7 Intellectual Property
(a) Trademarks. The Company has moral and registered rights in its trade marks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Customer warrants that it shall not infringe on any third-party rights through the use of Fizztopia.
(c) The Site. The Customer agrees and accepts that Fizztopia is the Intellectual Property of the Company and the Customer further warrants that by using Fizztopia the Customer will not:
i Copy Fizztopia or the services that it provides for the Customer’s own commercial purposes; and
ii Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Fizztopia or any documentation associated with it.
(d) Content. All content submitted to the Company, whether via Fizztopia or directly by other means, becomes and remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, enhancements, feature requests, suggestions or other information provided by the Customer or any other party with respect to Fizztopia.
6.8 Disclaimer of Third Party Services & Information
(a) The Customer acknowledges that Fizztopia is dependent on third-party services, including but not limited to:
i Banks, credit card providers and merchant gateway providers;
ii Telecommunications services;
iii Hosting services;
iv Email services; and
v Analytics services.
(b) The Customer agrees that the Company shall not be responsible or liable in any way for:
i Interruptions to the availability of Fizztopia due to third-party services; or
ii Information contained on any linked third party website.
6.9 Liability & Indemnity
(a) The Customer agrees that it uses Fizztopia at its own risk.
(b) The Customer agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Customer’s use of or conduct in connection with Fizztopia, including any breach by the Customer of these Terms.
(c) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, illness, personal injury, death, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use Fizztopia, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, loss, illness, personal injury or death, or business interruption of any type, whether in tort, contract or otherwise.
(d) Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
i The re-supply of services or payment of the cost of re-supply of services; or
ii The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Either party may terminate this Agreement by giving the other party written notice.
(b) Termination of this agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this agreement up to the date of expiry or termination.
(c) Termination does not affect any of the rights accrued by a party prior to termination, and the rights and obligations under clauses 6.4, 6.5, 6.6, 6.7 6.8, 6.9, 6.11, 6.12 and 6.13 survive termination of this Agreement.
6.11 Dispute Resolution
(a) If any dispute arises between the parties in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
i Includes or is accompanied by full and detailed particulars of the Dispute; and
ii Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
(b) Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) from each of the parties must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
6.12 Electronic Communication, Amendment & Assignment
(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The Customer can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. the Company will notify the Customer of a change of details from time-to-time.
(c) the Company will send the Customer notices and other correspondence to the details that the Customer submits to the Company, or that the Customer notifies the Company of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) Notices must be sent to the parties’ most recent known contact details.
(f) The Customer may not assign or otherwise create an interest in this Agreement.
(g) the Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Customer.
(a) Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
(b) Prevalence. To the extent this Agreement is in conflict with, or inconsistent with, the terms of any Special Conditions made under this Agreement, as relevant, the terms of those Special Conditions shall prevail.
(c) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
(d) Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
(e) Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(f) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
(g) Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(h) Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.