General Terms and Conditions of Sale
Version 1.0 – come into force on [24 May 2012]
Article 1 – Object and scope of application
1.1. The present General Terms and Conditions of Sale (hereinafter the “General Conditions”) define the rights and obligations of the parties within the context of the sale of products (hereinafter the “Products”) at the Internet website UpperWine (available at www.upperwine.com, hereinafter the “ Site”), on the Belgian, Netherlands, Luxembourg and German territory. The present General Terms and Conditions govern all Products sales made, whatever the vector used when ordering i.e. the website, by telephone, by mail or directly at the Tervuren outlet (located Leuvensesteenweg 67, 3080 Tervuren).
1.2. The General Conditions are concluded between the limited company under Belgian law Sacriana S.A., registered at the Crossroads Bank (“Banque Carrefour des entreprises”) under the number 0845.854.054 (VAT BE 0845.854.054 ), whose head offices are located at 1380 Ohain, Chemin du Grand Bois 6, in Belgium, hereinafter the “Seller”, and the person whishing to consult the Site and make a purchase, hereinafter the “Member”. The Member and the Seller are hereinafter jointly called the “Parties”. The Parties agree that their relations shall be exclusively governed by the General Conditions, to the exclusion of all conditions previously available at the Site.
1.3. Any Order of a Product proposed at the Site (hereinafter the “Order”), implies the prior consultation and express agreement to the present General Conditions by the Member. However, this agreement is not conditioned by a handwritten signature from the Member. Pursuant to the provisions of the 9 July 2001 Act fixing certain rules concerning the legal frame for electronic signatures and certification services, it is hereby reminded that the Order form validation, according to the provisions of Article 5 of the General Conditions, constitutes an electronic signature which has, between the Parties, the same value as a handwritten signature and constitutes the proof of the entire Order and of the payability of the amounts due for this Order.
1.4. The General Conditions exclusively concern the Members, who are non-merchant natural persons. The Member wishing to buy a Product at the Site declares possessing full legal capacity. Any person, who is incompetent in the sense of Articles 1123 and followings of the Belgian Civil Code, may not, under any circumstances, buy at the site, or must do it through the intermediary and under the responsibility of his legal representative, identified in the way described in Article 2 of the present General Conditions. This legal representative must respect the present General Conditions.
1.5. In accordance with the applicable legislation, each Member undertakes to confirm, when registering (by ticking the appropriate box), to be more than 18 years old.
Article 2 – Registration
2.1. The Products purchase at the Site is reserved to Members having previously and validly registered to UpperWine by following the registration procedure described at the Site. This registration procedure implies the obligation for the Member to identify himself by giving an e-mail address and a password to access the Site section reserved to Members.
The e-mail address and passwords are personal and confidential. The Seller declines any liability in case of abusive use of a Member's username or password.
2.2. The registration to UpperWine is reserved to the Members who have been authorized to register, either by a personalized invitation, or by being sponsored by an existing Member. Indeed, the Seller allows the Members to sponsor their relatives and friends in order for them to be allowed to become Members. This sponsorship does not have any financial compensation. The Seller reserves the right to refuse this sponsorship if it exceeds the limited circle of friends and relatives of the existing Member. The massive recruitment of sponsorees outside this limited circle, by advertisements on the Internet, in magazines or chat rooms, using or not the name of UpperWine or of the Seller, is strictly prohibited and shall be prosecuted.
2.3. The Seller reserves the right to exclude, at any time, a Member, for instance in cases of non-payment of previous purchases, or in case of frequent, abnormal and/or abusive returns. The Member shall be informed of his exclusion by an email sent to the address indicated at the time of his registration.
Article 3 – Products description and availability
3.1. The Products sale on the Site is made in two different ways : The first within the context of “Event Sales”, i.e. starting and ending at fixed dates and times, those dates mentioned on the Site and communicated to Members by an email sent to the address indicated at the time of their registrations. The second way is a Catalog offered by the Site, which contains a list of products available for sale and the price for each reference.
3.2. The Products proposed to sale are those figuring at the Site with a description of their essential characteristics, at the time and day of the Site consultation by the Member, while supplies last. The Seller implements all reasonable means to display at the Site the Products availability in real time, but may not be held liable if a Product were to be unavailable to honour the Member's Order. In case of the unavailability of one of the ordered Products, the Members shall be informed and shall have the choice to either modify his Order or cancel it. In this case, he shall be reimbursed of the amount of his Order if payment was already made.
3.3. The photos, legends and other descriptive elements illustrating the Products are not contractual. If those photos and/or legends present some inaccuracies, the Seller cannot be held liable. The Seller commits to make its best efforts to rectify as quickly as possible the inaccuracies or omissions after having been informed of their existence.
Article 4 – Purchase Price and Preparation and Delivery Costs
4.1. Product Purchase Price
Each Product Price is displayed at the Site (hereinafter the “Purchase Price”) in euros, VAT included. This Price is valid in Belgium, Netherland and Luxembourg and does neither include Preparation and Delivery Costs, which are chargeable to the Member, nor the deduction of any discount or purchase voucher personally awarded to the Member. To allow Members to compare the prices practiced at the Site and those practiced in retail stores, a comparison price may be displayed, hereinafter the “Retail Price”, as well as the difference calculated between the Retail Price and the Purchase Price. The Retail Price is a comparison price, in euros and VAT included, practiced at the moment or last season in traditional retail stores for the designated Product. It may be either the reference price recommended by the producer, importer or wholesaler to the stores selling this article, or a price recorded in stores at the time of the sale of this article, or the recorded price on the original article. This comparison does not take into account the Preparation and Delivery Costs, nor any discount or purchase voucher personally awarded to the Member. The Seller reserves the right to modify its prices at any time, but Products shall be invoiced on the basis of the Purchase Price in force at the time of the order validation, depending on availability.
4.2. Preparation and Delivery costs
At the time of the Order, Members commit to pay, further to the Products Purchase Price, the Preparation and Delivery Costs. Those Costs vary, depending on the product type, the quantity of ordered Products, the delivery mode chosen, and the place of delivery of the order. The costs include all taxes (VAT or other applicable taxes), and are flat. For delivery in another country, the member must apply for a personal quote. The Member may consult the amount of these costs at the Site by clicking on the “Purchase Basket”, where the total amount corresponding to the Products Purchase Price and to the Costs is displayed. The Seller reserves the right to modify the Costs at any time, but the Costs shall be invoiced on the basis of the Purchase Price in force at the time of the order validation, depending on availability.
Those Costs remain due and shall not be reimbursed if the Member returns part of all of his Order pursuant to his Cancellation right, as detailed in Article 8 of the present General Conditions.
Article 5 – Order modalities
5.1. To order, the Member must access the Site part reserved to Members, by indicating his username and password. He must then fill in the order form available at the Site, where he shall indicate the details necessary to his identification, such as his surname, first name and delivery address. The Seller shall not be held liable for the communication of inaccurate details. After having filled in the order form, the Member shall be invited to finalize the Order process, by clicking on “Order”, by which the Member declares fully accepting and without reserves the whole present General Conditions, validates definitively his Order and commits to pay the whole due amount, i.e. the Purchase Price, plus the costs, minus any discount or voucher.
5.2. The Seller shall confirm each Order by sending an email to the Member within 24 hours of the Order on the Address indicated by the Member when he registered (hereinafter “Order Confirmation”). This Order Confirmation shall mention among other things, the Order date, the Product ordered, its Purchase Price with the Costs, as well as the Delivery address and specifications.
The data recorded by the Seller, as well as the Order Confirmation, constitute the proof of the contractual relationship between the Parties.
5.3. The Seller reserves himself the right to refuse or cancel any Order or Delivery in case of (i) existing dispute with the Member, (ii) partial or total non-payment of a previous Order or (iii) credit card payment authorization refused by the banking institutions. In this case, the Seller's liability may not, under any circumstances, be engaged.
5.4. After having ordered, the Member shall not be entitled to cancel his Order anymore, but shall be able to use his Cancellation right, according to the conditions stipulated in Article 8 of the present General Conditions.
Article 6 – Modalities of payment
The purchases payment is made by credit card, such as Visa or Mastercard or by Maestro. At the time of the Order validation, the Member chooses one of the proposed modes of payment. In case the Member chooses for a credit card, he needs to indicate the name appearing on his credit card, the card number, its expiry date and the control number. Some issuing banking institutions may request an additional signature, such as a digipass. The payment validity is confirmed or not after verification with the issuing banking institution. If the payment is confirmed, the withdrawal takes place, after the invoicing of the Order, according to the methods agreed with the card issuing bank. The Seller shall not accept any credit card payment for an amount greater than one thousand (1000) euro per order. Title to the Product(s) shall remain with the Seller until full payment of the Purchase Price and Costs indicated at the time of the Order.
Article 7 – Delivery
7.1. The Delivery is carried out by the Seller anywhere in Belgium, the Netherlands, Luxembourg an Germany. Deliveries take place on weekdays between 7am and 6pm. The products will be delivered at the address of your choice and received by the person of your choice (home address, neighbours, workplace). First passage : if there is no one, a first notice will be left in your mailboxand a second passage will be provided on the following business day. Second passage : If there is no one, a second delivery notice will be left with the address of the nearest Post Ofiice where you can pick up your order. Another option : on the back of the second delivery notice will be provided all the necessary information to plan a third passage on the day of your choice. If the Member does not organize a new delivery within 14 days after the first delivery notice, the Order shall automatically be returned to the Seller, who shall contact the Member in order to organize the Order delivery. In this case, additional costs may be charged to the Member. The delivery period is announced in the confirmation email.
7.2. The risks shall pass to the Member at the time of delivery. Each delivery is deemed to be carried out as soon as the Product is at the disposal of the Member according to the mode of delivery chosen, i.e. the chosen delivery address. The proof of this shall be materialized by the control system used by the delivery person.
7.3. The Member must verify the parcel(s) when it/they arrive(s) and make every reserve and complaint which appears justified, or even refuse the parcel(s) if it/they might have been opened or if it/they present(s) obvious traces of deterioration. The abovementioned reserves and complaints must be directly addressed to the carrier by registered mail with acknowledgement of receipt, within three working days following the Product delivery. A copy must also be sent to the Seller.
Article 8 – Cancellation right and modalities of return
8.1. If one of the Products purchased does not suit the Member, the latter has the right to cancel his order within fifteen (15) calendar days of the day following the delivery, without any penalty or explanation, in accordance with the European and National legal provisions which are applicable to the General Conditions (1). Within that delay, the Member must notify the Seller of his intention to use his Cancellation right, by sending an email to firstname.lastname@example.org. A return code and a return form will be sent to him by email. The Member will then fill in the return form, sign it and insert it in the returned parcel.
From the moment the Member expresses his intention to return part or all of his Order, he has ten (10) calendar days to return the Products to the Seller. The non-compliance with that delay shall cause the Member to be deprived of this Cancellation right. In consequence, he shall have to pay his Order.
8.2. The Products must be returned to the address of the Seller mentioned below, unless otherwise specified to the Member, by any means of transport left to the choice of the Member, who must keep the dispatch proof : Sacriana SA, Chemin du Grand Bois 6, B-1380 Ohain, Belgium. The costs and risks of the return dispatch are supported by the Member.
8.3. If the Member uses his Cancellation right, according to the abovementioned modes, the Seller commits to reimburse the Purchase Price to the Member, if already paid, within thirty (30) days of the receipt by the Seller of the return package. However, preparation and delivery costs remain due even if the entire parcel is returned.
The reimbursement shall be made as follows:
If the Member paid his Order by credit card, once the returned articles shall have been checked, an amount shall be credited on the credit card used by the Member, corresponding to the returned articles Purchase Price, reduced by the amount of the purchase voucher(s) or discounts used to pay the Order. The reimbursement to the Member shall be made according to the methods agreed upon with the card issuing bank. If the Member paid by another mean of payment, the reimbursement shall be paid by bank overdraft, to the bank account provided by the Member on the return form. In case no valid bank account number has been provided on the return form, the Seller shall be entitled to pay the amount to refund in the form of a purchase coupon valid on a future purchase on the Site.
8.4. The Member shall not be entitled to this Cancellation right if the delivered Products have obviously been used, are damaged or if there are missing parts. The Products must imperatively be returned properly protected, in their original packaging, in a perfect state allowing their resale (not damaged nor dirty), with all accessories, user manuals and brochures, to the abovementioned address, with the original sale invoice, a copy of it being kept by the Member. Otherwise, Products cannot be returned. Parcels without any element allowing the identification of the sender (return code, Order number, surname, first name, address) cannot be returned either. The articles sent but not accepted for return shall be kept by the Seller at the Member's disposal. The Member must take them back and pay them. In case of abnormal or excessive returns, the Seller reserves the right to refuse any further Order.
8.5. The Seller shall in any case not be obliged to replace or reimburse any product that (i) has been damaged by the Member's fault (for instance, due to bad conservation conditions) or (ii) became unfit for consumption due to too long conservation periods.
Article 9 – Privacy protection and personal data processing
9.1. The Company Sacriana collects personal data concerning the Members communicated by them at the Site. The Company Sacriana commits not to disclose those data to third parties. Those data are confidential and shall only be used by its internal departments for the processing of Orders, or to enhance and personalize the communication, for instance by informative mail/e-mail, as well as within the context of the personalization of the Site according to the Members’ recorded preferences.
9.2. As a result, the Company Sacriana does not sell, commercialize nor sent to third parties the Members' related information. In case of assignment or use by third parties of personal data, the Company Sacriana commits to inform the Member in advance, in order to allow him to exercise his opposition right. The Company Sacriana may also provide consolidated statistics, concerning its Members, sales, exchanges structures and information at the Site, to trustworthy third parties. However, those statistics shall not contain any personal data. The present Article shall not, however, be construed as preventing the assignment or business transfer to third parties.
9.3. Pursuant to the European and National legal provisions which are applicable to the General Conditions (3), the Member may exercise his right of access to the filing system and his right to rectify the personal data concerning him, by accessing the section “Personal Information” under the heading “My account”. He may exercise his right of deletion of the personal data concerning him by accessing, at the Site, the heading “Contact” by using the form of this same section to send “I wish to renounce my membership”, or by sending a letter to : Sacriana S.A., Leuvensesteenweg 67, 3080 Tervuren, Belgium (the Member must indicate his e-mail address, surname, first name and postal address); or by email to: email@example.com.
9.4. The Site uses “Cookies”. Cookies are small text files transferred to the User's hard-disk. They aim at tracking the Member's previous Site usage. Furthermore, cookies are used by the Company Sacriana to personalize the service offered to the Member. The Member has the possibility to configure his browser to reject cookies. By doing so, he chooses the opportunity to personalize the service offered by the Company Sacriana.
9.5. These cookies may also be used with some of the partners of the Company Sacriana, for instance to count the number of the page visitors, to measure and improve the efficiency of certain actions. The information obtained through those cookies simply allows compiling statistics related to the frequenting of certain pages of the Site, in order to better serve Members.
9.6. Personal data may be used by the Company Sacriana and its logistical partners to deliver and bill ordered products and services, to contact members in case of problems or to contact them personally.
Article 10 – Liability
The Seller only undertakes an obligation of means at all stages of the Site access, from the Order processing, until the delivery or any further services.
The Seller may not be held liable for all inconveniences or damages linked to the use of Internet, such as a service rupture, an external intrusion or the presence of informatics viruses, or any other event constitutive of force majeure.
Under no circumstances, the Seller's liability under the present General Conditions shall exceed the actual sums paid or to be paid at the time of the transaction concerning the Products with respect to which such claim is made, whatever the cause or the form of the claim. The information submitted by the site concerning Products were provided by the suppliers of those products. Sacriana SA could in no way be held responsible if this information was proven incorrect. UpperWine is also committed to swiftly address them once the inaccurate nature of the information is found.
Article 11 – Intellectual Property
All elements of the Site, being visual or sonorous, including the underlying technology, are protected by copyright, brand or patent law, and more generally by intellectual property, as well as by the law concerning databases. They are the exclusive property of the Seller. The Member processing a personal Internet website and wishing to put, for his personal use, on his website a direct link to the Site, must compulsorily request the Seller's authorization. This must not be understood as an implicit contract or registration. On the other hand, any hypertext link to the Site, and using the framing technique, the in-line or deep linking technique, is strictly forbidden. In any case, every link, even tacitly authorized, must be removed at the Seller's simple request.
Article 12 – Contact and enquiries management
In case a Member has a question related to his purchase, he can contact the Seller through the contact form available in the Help & Contact section of the Seller website or using the following email address firstname.lastname@example.org. The Seller will contact the Member with a maximum 5 days delay to provide an answer to the Member's enquiry.
Article 13 – Separable provisions
If one or more provisions of the General Conditions are held invalid or declared as such by application of a law or a regulation, or following a final decision form a competent court, this shall not affect the validity of the other provisions. The General Conditions and the Order summary transmitted to the Member form a contractual ensemble and constitute the whole contractual relations between the Parties. If there is any contradiction between those documents, the General Conditions shall prevail.
Article 14 – Proof
The computerized databases stored in the computer systems of the Seller and its partners under reasonable security conditions, shall be considered as proofs of the communications, orders and payments between the Parties.
Article 15 – Amendments
The Seller reserves the right to amend the General Conditions at any time.
The amended General Conditions shall be available to the Members on the Site.
Unless legal or statutory requirements specify otherwise, the amended General Conditions shall enter into force with immediate effect or at a later date as announced in the modified General Conditions or by UpperWine.
Any order placed by a Member shall be ruled by the General Conditions in force at the date of the order.
Article 16 – Governing Law and jurisdiction
The General Conditions are governed by Belgian law. In the event of a dispute, the Parties shall try to find an amicable solution before initiating any proceedings. Failing an amicable settlement, the dispute shall be subject to the exclusive jurisdiction of the Brussels judicial district Courts (Belgium).
(1) (i) The directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts, and the national transposition laws (the Belgian Act of. 14 July 1991 Act on commerce practices and on information and protection of the customer, the Luxembourg Act of 16 April 2003 on the protection of consumers with regard to distance contracts, and the Netherlands Act of 1 February 2000 on the distance selling) and (ii) the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and the national transposition law.
(2) The Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and the national transposition laws (Belgian Act dd. 8 December 1992 Act on Privacy Protection in relation to the Processing of Personal Data, the Luxembourg Act of 2 August 2002 on the protection of individuals with regard to the processing of personal data and the Netherlands Act of 03 July 2000 on the protection of personal data).
(3) The Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and the national transposition laws (Belgian Act dd. 8 December 1992 Act on Privacy Protection in relation to the Processing of Personal Data, the Luxemburg Act of 2 August 2002 on the protection of individuals with regard to the processing of personal data and the Netherlands Act of 03 July 2000 on the protection of personal data).