1 Introduction
1.1 We are Liv-ex Limited, a company registered in England (company number 3874907). Our business is based in England and our registered office is at Unit 105/106, Metal Box Factory, 30 Great Guildford St, London, SE1 0HS. Our VAT registration number is GB 751 8508 21. References when using our services to “Liv-ex Belgium” are references to Liv-ex Limited as trading in Belgium under VAT number BE0744548244.
1.2 We run Liv-ex, the Fine Wine Market for professional buyers and sellers of fine wine, which, amongst other things, provides:
1.2.1 independent fine wine price information and research, including the industry benchmark Liv-ex 100 Fine Wine Index (the “Liv-ex fine wine information”);
1.2.2 an internet and phone-based trading and settlement platform for fine wine merchants and professionals (the “wine exchange”); and
1.2.3 a specialist storage and transport solution for the fine wine trade.
1.3 Many of the Liv-ex services are provided via our website, currently found at www.liv-ex.com, which is administered from our offices in England.
1.4 The term “wine” in these terms and conditions includes still wine, sparkling wine, fortified wines, and spirits and such other similar or related products as may be listed from time to time in the Liv-ex fine wine information or the wine exchange.
1.5 Please note that we do not provide services to consumers, all of our services are provided to members who are acting in the course of business or as part of the operation of their trade or profession. The Liv-ex exchange is an unregulated business-to-business exchange and members are not protected by a specific regulatory framework.
1.6 These terms and conditions set out our commitment to you and your commitment to us in respect of the Liv-ex services and your use of the site. If you are a business and you wish to use the Liv-ex services then we require you to accept these terms and conditions as part of the membership process.
2 Exchange Committee
2.1 The Exchange Committee oversees the site and the Liv-Ex services (including the wine exchange) and, amongst other things, controls membership of the site, deals with disputes and ensures members comply with these terms and conditions.
2.2 The Exchange Committee meets on a regular basis and consists of five persons: two of our employees; one representative from each of two members of the site; and a chairman appointed by the other four Exchange Committee members.
2.3 The quorum for the transaction of Exchange Committee business is three and questions to be decided by the Exchange Committee are decided by a majority of votes, with each member of the Exchange Committee entitled to a single vote.
3 Variation of these terms and conditions
3.1 We may amend these terms and conditions at any time by posting the amendments on the site and, at our discretion, notifying you by email of the amendments. Unless we inform you otherwise, an amendment will take effect seven days after the date that we post it on the site. Your use of the site after the date an amendment takes effect will be subject to these terms and conditions as amended by that amendment.
MEMBERSHIP
4 Liv-ex membership
4.1 To access most parts of the site and to use the Liv-ex services you must first register with us as a Liv-ex member.
4.2 There are two types of membership:
4.2.1 membership that gives you access to our fine wine price information and research, including the industry benchmark Liv-ex 100 Fine Wine Index (“data member”); and
4.2.2 membership that allows you to buy and sell wine using the wine exchange (“trading member”).
4.3 You cannot be a trading member unless you are also a data member and there are separate membership registration processes for each type of membership. There are also different levels of membership within each type of membership.
4.4 As part of the membership registration process you will be asked to provide information such as your organisation name, business address, company registration number, VAT number (if applicable), AWRS registration number (if applicable) and contact details (including a business email address).
4.5 The person that completes the membership registration process on your behalf will be asked to confirm that you accept and agree to be bound by these terms and conditions. You may not use the Liv-ex services if you do not accept these terms and conditions.
4.6 By completing the membership registration process:
4.6.1 you represent and warrant to us that: (i) you are subscribing to use the site and the Liv-ex services in the course of your business; (ii) you buy and / or sell wine in the course of your business; (iii) all of the information that you have provided as part of the registration process is complete, accurate and up to date; and (iv) any person who completes your membership application is authorised to act on your behalf; and
4.6.2 the person that completes the registration process on your behalf represents and warrants to us that he/she: (i) is authorised to act for you for the purposes of making your membership application; and (ii) has the capacity to understand and accept these terms and conditions on your behalf.
4.7 We or the Exchange Committee may suspend or terminate part or the whole of your membership entitlement or your status as a member at any time, for any reason. In particular we or the Exchange Committee may terminate or suspend your membership in the event that you breach, or we determine in our absolute discretion that you have or will soon breach, any provision of these terms and conditions or any contract of sale between you and us for the sale or purchase of wine through the wine exchange, or on any of the grounds set out at clause 41. We or the Exchange Committee may (but are not obliged to) make details of any such suspension or termination publicly available on the site. The lifting of any suspension or termination is entirely at our or the Exchange Committee’s discretion and we will not be liable or responsible for any costs, claims, liabilities, or expenses which arise due to any suspension or termination.
4.8 Unless we agree otherwise in writing, each membership is subject to a minimum period of 12 months and in any event will be for such period as we may specify or agree.
4.9 Your membership shall continue for the minimum subscription term as specified by us which will typically be a period of 12 months (“Initial Membership Term”). At the end of your Initial Membership Term and thereafter your membership will automatically renew for successive 12-month periods (each a “Renewal Term”) unless either Party gives prior written notice at least 30 days before the expiry of the Initial Membership Term or a Renewal Term of its intent to terminate the membership in which case your membership shall terminate upon the expiry of the applicable Initial Membership Term or Renewal Term. A membership upgrade may occur at any time agreed between us and you. To downgrade membership a member must give notice before the expiry of the Initial Membership Term or a Renewal Term of its intent to downgrade in which case the downgrade shall be effective upon expiry of the applicable Initial Membership Term or Renewal Term.
4.10 We reserve the right to change or amend our charges and other substantial terms of your membership at any time, subject to clauses 4.11 and 4.12.
4.11 We will be entitled to increase our membership and other charges at any time by an amount not exceeding the increase in the Consumer Prices Index (as published by the UK Office of National Statistics) in the 12 months up to either a) the date (or month) of notification of the relevant increase (“Inflationary Increase”) or b) such earlier date as we may specify.
4.12 We may increase our charges by an amount exceeding an Inflationary Increase or make other substantial changes to your membership terms by giving you not less than 30 days’ prior notice and if you do not wish to continue your membership at the new level of fees and charges or subject to the new terms, then you will be entitled to terminate your membership prior to these changes taking effect (and those changes will either take effect from a fixed date specified by us or with effect from the start of the next Renewal Term). Failure to terminate your account in time will result in you being invoiced for the relevant membership at the new level of fees and charges, or being subject to the new membership terms in accordance with this Agreement.
Free Trials
4.13 We may, at our discretion, offer a free trial period (“Free Trial”) to a prospective member or member (“Trial Member”). A Free Trial will be for such period as we specify, and we will be entitled to terminate a Free Trial at any time for any reason without liability. These terms and conditions apply in full to any Trial Member, subject to clauses 4.13 to 4.18 which shall prevail over any other terms in the event of any conflict.
4.14 The Trial Member’s licence to access the services during the Free Trial is limited to a single user licence for the purposes of evaluation and testing of the service. During a Free Trial we may provide you with access to a test environment and/ or access to a ‘dummy’ dataset. Any environment, data or services accessed during a free trial is for the purpose of evaluation of our services only. You may not use any environment, data or services provided during a free trial in any production environment or for the provision of any live services nor may you share any outputs from the service externally under any circumstances.
4.15 We will provide reasonable assistance during a Free Trial but we will not be required to provide any professional, support or maintenance services.
4.16 We do not provide any warranty in relation to our services during a Free Trial and the Trial Member hereby accepts its licence to use our services on this basis.
4.17 On completion of the Free Trial a membership may commence. Neither we nor you shall be obliged to enter into such membership.
4.18 Our total liability, whether in contract, tort (including negligence) or otherwise in connection with a Free Trial, shall in no circumstances exceed a sum equal to £100.
5 Additional trading member application terms
5.1 The Exchange Committee decides upon trading member applications.
5.2 In order to become a trading member, you must meet certain minimum requirements set by the Exchange Committee before the Exchange Committee will consider your trading member application. The Exchange Committee’s acceptance or non-acceptance of you as a trading member is completely at its discretion. The Exchange Committee or its representatives may approach third parties for the purpose of obtaining references regarding your suitability to be a trading member.
5.3 If your business is registered in the UK or European Union and you wish to join as a trading member you must provide us either with your VAT registration number or alternatively confirmation that you are exempt from VAT registration, e.g. because all your sales are in bond.
5.4 In the event that the Exchange Committee refuses your trading member application you may not make a further application for membership for at least one year.
5.5 You must notify us of any change to the information you provide or in your circumstances that means you no longer meet the minimum requirements set by the Exchange Committee for becoming a trading member as soon as possible after the change occurs.
5.6 If you or any of your connected persons are charged with or convicted of a relevant criminal offence, you will promptly notify Liv-ex of this. Liv-ex and/or the Exchange Committee may exercise the powers in clause 41.1 and 41.2. “Relevant criminal offence” and “connected persons” are defined at clause 41.6.
6 Authorised users
6.1 Authorised users are persons that are authorised by you and us to access and use the Liv-ex services on your behalf. Only authorised users may use the Liv-ex services.
6.2 You are responsible for ensuring that your authorised users comply with these terms and conditions, and you are responsible and liable to us for all the acts and omissions of your authorised users and for the acts and omissions of your former authorised users whether or not you have informed us that their access should be terminated.
6.3 The person that completes the membership application process on your behalf will be your primary point of contact in respect of the Liv-ex services and will be set up as your first authorised user.
6.4 We reserve the right to require, at any time, that any authorised user provides identification documents, background information, and such other information as we may reasonably require.
6.5 You must have at least one authorised user at all times. You may request at any time that additional authorised users are set up to access and use the Liv-ex services on your behalf. You may also request at any time that we change the identity of, or remove, any of your authorised users. You agree to notify us immediately in the event that your authorised user ceases to be authorised (e.g. because they are no longer employed by you) to enable us to terminate their access to our services.
6.6 A person cannot be an authorised user for the wine exchange without also being an authorised user for the Liv-ex fine wine information.
6.7 A person can be an authorised user solely for the Liv-ex fine wine information.
7 Security
7.1 Each time we set up an authorised user to access and use the Liv-ex services on your behalf we will send them a username and password that allows them access to and use of the Liv-ex services (“authorised user ID”). Authorised users may change their authorised user ID at any time using the authorised user ID change facility found on the site.
7.2 You are responsible for all consequences arising from the use or misuse of the authorised user IDs. In particular, you acknowledge and agree that instructions and actions transmitted via the site or given by telephone will be deemed to have originated from you if an authorised user ID has been used or if the relevant caller has correctly answered any agreed security questions.
7.3 You must ensure that authorised user IDs are kept secret at all times and not disclosed to any unauthorised person. You must inform us immediately if you become aware or suspect that some or all of an authorised user ID is known by any person other than the relevant authorised user so that we can take appropriate action to prevent the misuse of such information.
7.4 We may record any telephone calls between us and you in order to ensure accuracy, provide verification of any details or instructions provided by you and maintain the quality of our service.
8 Membership fees
8.1 We charge you membership fees for your Initial Membership Term starting from the date on which we first admit you as a member and for each Renewal Term. When you first join us as a member we will also charge you a one-off joining fee.
8.2 We offer a variety of membership packages and the membership fees we charge you for each membership period will depend upon the package you have subscribed to for that period.
8.3 Details of our current membership packages and the membership fees for each one can be found on the site or obtained from us on request. We may from time to time change the membership packages we offer and the membership fees we charge.
8.4 For each membership period, we will invoice you, and you must pay, the total membership fees either in full in advance or in 12 monthly instalments. For your Initial Membership Term, you must pay us at least the first monthly instalment and the joining fee before we will provide you with access to the Liv-ex fine wine information.
8.5 Membership fees are non-refundable.
8.6 We reserve the right to suspend your right to use the wine exchange or suspend or terminate your membership if membership fees become overdue for payment.
LIV-EX PROPERTY
9 Licensed property
9.1 The main Liv-ex data service we provide to members is access to and use of the Liv-ex fine wine information, which, depending on the membership package subscribed to, may include access to and use of Liv-ex data (including price data, obtained via the Liv-ex website or from other third party sources), valuations, indices, product codes, charts, assessments and analyses found on the site or otherwise provided by us to you from time to time (“Liv-ex data service”).
9.2 The Liv-ex fine wine information, the Liv-ex brands, the Liv-ex data service, the Liv-ex website and all of its content (the “Liv-ex property”) are our valuable property. You acknowledge that as between us and you, as a member, all rights, including all intellectual property rights (as defined below), subsisting in the Liv-ex property from time to time belong and shall continue to belong to us, and you shall have no rights in or to the Liv-ex property other than the right to use it in accordance with these terms and conditions. You agree that all goodwill which arises from your use of the Liv-ex property shall belong and accrue automatically to us. For the purposes of these terms and conditions, “intellectual property rights” means patents, rights in inventions, copyrights, design rights, trademarks, service marks, rights to restrain unfair competition, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world. Nothing in this clause 9.2 shall give Liv-ex or any other third party any rights in or to any third party data which forms part of the Liv-ex data.
9.3 Subject to these terms and conditions, we grant to you, as a member, a non-exclusive, non-transferable, limited, non-sublicensable, revocable licence to use the Liv-ex property for the term of your membership solely for the purpose of carrying out the following activities:
9.3.1 Internal Analysis – the use of the Liv-ex property to undertake internal activities such as; keeping up-to-date generally about the price of fine wines and the fine wine market, buying and selling wine through the wine exchange as a trading member, stock valuation, trading opportunity alerts, trade analysis and market comparison.
9.3.2 Professional Services – the use of the Liv-ex property for you to deliver professional services to your customers such as; private reserves valuation, trade opportunity alerts, trading services and cellar management services. Where you use the Liv-ex property for this purpose you may only use the most recent price points available through the Liv-ex property at the time you undertake the relevant professional service for your customers. You may only provide the data you have accessed for your professional services to your customers by way of a written report. You may retain, for audit purposes, a copy of any reports you make available to your customers but you must not make use of it for any other purposes including reusing the data.
9.3.3 Value-Added Automated Services – you may subscribe to our service in order to develop or provide a product, software or service which provides or delivers Liv-ex data to your users as part of a service which provides material added value by providing additional context, information or functionality to your users. For the avoidance of doubt providing raw Liv-ex data (without a material value-added service) is expressly not permitted.
9.4 We may provide access to Liv-ex data by providing you with access to a software interface and associated materials to facilitate access to the Liv-ex data on an automated basis (“Liv-ex API”). If you are accessing our services via the Liv-ex API, then please note the following terms which will apply:
9.4.1 the amount of data you are permitted to access may be capped depending on your membership tier and additional charges may be incurred if you exceed the applicable data cap;
9.4.2 we will provide reasonable assistance to you in accessing the Liv-ex API but we will not be required to provide professional services to you, unless otherwise agreed (and we will be entitled to charge for any such professional services);
9.4.3 it is your sole responsibility to write and develop any tools or software code which may be necessary in order to: integrate the Liv-ex API within your own systems or software and to analyse or present the Liv-ex data within your systems and products;
9.4.4 we are not responsible for the success of any integration of the Liv-ex API with your systems;
9.4.5 we may require that your credentials to access the Liv-ex API are updated from time to time for security purposes, if you fail to update your credentials then your access may be suspended until such time as you have updated your credentials;
9.4.6 from time to time we may update the Liv-ex API systems and software and you may be required to migrate access to the Liv-ex API to a replacement system or software, we will endeavour to provide reasonable advance notice of any such change;
9.4.7 we will not be responsible or liable in the event that the data you receive via the Liv-ex API is out of sync with your own systems or data.
9.5 We may provide access to information and data from third parties including critic scores, reviews etc. Collectively any such material provided from a Third Party is referred to as (“Third Party Content”). Third Party Content is made available on our service but we accept no liability for the data and we are not responsible for its accuracy completeness or quality. Depending on the terms of the relevant provider Third Party Content may only be available if you have an applicable licence and the terms of that licence will apply between you and the relevant Third Party. Access to Third Party Content may be terminated on termination of your licence with the relevant provider. You agree to comply with any applicable terms associated with Third Party Content and agree to provide such credit in relation to the presentation of Third Party Content as may be required by the relevant Third Party.
9.6 Any data or information provided by us via the Liv-Ex API, via our website or other services has been collected and provided on the basis of the best information, data and materials available to us but we do not guarantee that the data or information is 100% accurate and complete. Any conclusions, opinions or judgements made should not be regarded as definitive or relied upon to the exclusion of other information, opinions and judgements. Reasonable efforts will be made to ensure that the information and data provided is accurate and up-to-date but we cannot guarantee that the information and data will be error-free.
9.7 Your licence from us does not give you any right to sub-license, copy, download, store, distribute, sell or otherwise make the Liv-ex property available to third parties (save as otherwise expressly set out above) without our written permission.
9.8 No entity, organisation or user, whether or not such entity, organisation or user has any form of registration, membership or licence from us is permitted to engage in any form of web-scraping, data harvesting, data-scraping or any other similar activity which is intended or has the effect of collecting data on a large scale for the purposes of collection, storage, analysis or use. In particular data may not be used whether directly or indirectly for the purposes of training, developing or enhancing any artificial intelligence, machine learning tool or model or algorithm.
9.9 The volume of data that you are entitled to consume per month is dependent on the membership package subscribed to. If you exceed your data consumption limit we reserve the right to apply excess data charges to your account.
9.10 You agree that your access to Liv-ex data will be subject to limitations and restrictions as follows:
9.10.1 the amount of data and categories or types of data you are permitted to access may be subject to restrictions, limitations or caps, which may depend on your membership tier;
9.10.2 the types of data you are permitted to access may be subject to change, depending on your membership tier;
9.10.3 only authorised users are permitted to access Liv-ex data;
9.10.4 you are only permitted to access Liv-ex data for purposes permitted under this Agreement.
9.11 And we reserve the right to monitor your access and use of our data. You agree that if we have reasonable suspicions that our data or any Liv-ex property is being accessed or used in breach of these terms or our rights, then we or our advisors will be entitled to access your premises, systems, books and records on reasonable notice for the purposes of conducting an audit in relation to your use of our data. You further agree that if such audit reveals any mis-use of our data or other Liv-ex property that you will be liable for the costs of such audit on a full indemnity basis without prejudice to any other right or remedy we may have (including without limitation our rights arising under clause 39 of these terms).
9.12 You shall:
9.12.1 not use the Liv-ex property for any illegal, deceptive, misleading, unlawful, immoral or unethical purpose or otherwise in any manner which may be detrimental to the reputation of the Liv-ex property or any person;
9.12.2 not do anything or omit to do anything, which may diminish our rights in the Liv-ex property or which may bring the Liv-ex property into disrepute;
9.12.3 not use the Liv-ex property for financial product bench-marking purposes or for valuation of any financial product. You require a separate valuation licence from us if you wish to use the Liv-ex property for these purposes. Please contact us for further details;
9.12.4 not use the Liv-ex property, including the Liv-ex data service in particular, to create, develop or inform the creation of another product which uses any of the data made available through the Liv-ex property, or is intended to or which has the outcome of competing with us or any of the services that we offer (or any part of them);
9.12.5 not frame or otherwise link to any of the Liv-ex property whether through your website or that of a third parties and not provide access to any Liv-ex property to any third party; and
9.12.6 ensure that any use of the Liv-ex property or part thereof, shall be accompanied by a reference to us being the source of the Liv-ex property in accordance with our brand guidelines.
9.13 We shall be entitled to immediately terminate access to the Liv-ex property for breach of any of the terms set out in this clause 9 and you shall fully indemnify us for all losses, damages and costs incurred by any such breach. Further, we reserve the right to seek injunctive relief, as may be appropriate, in respect of any breach of the terms of this clause 9.
9.14 The Liv-ex property is supplied by us on an “as is” and “as available” basis. You acknowledge and accept that the Liv-ex property is created through subjective analysis of available data which may be open to other interpretations, and as such does not constitute a precise scientific determination. It is not and should not be relied on as being investment advice. To the extent permitted by applicable law, we are not liable to you or to any third party for any inaccuracies, errors or omissions contained in the Liv-ex property, nor for any loss or damage, whether direct, indirect or consequential, suffered by you or by any third party in respect of any reliance you or a third party place on any Liv-ex property; and to the extent permitted by law we expressly exclude all warranties, conditions and representations, express or implied, in this regard.
9.15 We retain full editorial control over the Liv-ex fine wine information and we may change the content and format of the information without notice.
LIV-EX SERVICES RELATING ONLY TO TRADING MEMBERS
10 Trading member only clauses
10.1 Clauses 11 to 31 of these terms and conditions apply only to trading members.
11 The wine exchange
11.1 The main Liv-ex service we provide to trading members is the wine exchange, through which trading members may buy and sell wine.
11.2 Where a trading member posts on the exchange that it wants to sell (or buy) wine and a different trading member posts on the exchange that it wants to buy (or sell) that wine at the price at which it is offered, the wine exchange operates so that we purchase the wine from the trading member who wants to sell it and we sell the wine to the trading member who wants to buy it. The terms and conditions upon which these transactions take place are set out below.
11.3 The wine exchange is an electronic trading and settlement platform that, as a trading member, you are entitled to use remotely either via the site or using application program interfaces (APIs) provided by us. You can also contact us about wine that you wish to buy or sell using the platform and we can carry out that transaction for and on your behalf using the site and the platform.
12 Logistics
12.1 As part of each transaction carried out using the wine exchange we provide to you, via the logistics division of the Liv-ex business, storage, warehousing and (in some cases) transportation services. We may also provide you with other storage, warehousing and transportation services on an ad hoc basis, as agreed between you and us from time to time. A list of the services available and the charges for these services can be found on the site.
12.2 The warehousing operation consists of a number of authorised warehouses. A list of current authorised warehouses can be found on the site.
12.3 At the time you first become a trading member we will open a storage account for you, which shows up-to-date information on the wine that we store for you at our authorised warehouses. Your storage account will be updated on a transaction-by-transaction basis for each transaction you carry out using the wine exchange.
12.4 Wine listed in your storage account may be allocated into sub-accounts at your request, or directly by you. Whilst we provide the sub-account facility for your benefit to help you run your business, please note that the sub-account information may be incomplete, out of date or inaccurate and should not be relied upon by you. We are not responsible or liable to you for any inaccuracies in the sub-account information and you should check that the sub-account information is correct before relying on it or using it for any purpose.
12.5 Liv-ex is a member of the United Kingdom Warehouse Association (UKWA), Membership No 00050746. When we provide storage and warehousing services to you (whether as part of a transaction carried out using the wine exchange or otherwise) we shall do so under and subject to UKWA’s standard contract conditions for logistics (or equivalent replacement terms) and the provisions of clause 12.6. In the event of any conflict between these terms and UKWA’s standard contract conditions, these terms will prevail.
12.6 In respect of each bottle of wine or spirits that we store or keep for you in one of our warehouses, unless you expressly ask us not to in respect of that bottle before we start storing or keeping that bottle for you:
12.6.1 we will insure that bottle of wine or spirits for its full replacement value in case of loss, damage or destruction whilst it is under our control;
12.6.2 we will charge you for the cost of that insurance;
12.6.3 our insurance policy is available on our website https://www.liv-ex.com/wp-content/uploads/2024/12/Key-Insurance-Facts.pdf, and you agree you are aware of the exclusions in that policy; and
12.6.4 we will, at our discretion and in full and final settlement of our liabilities to you, replace or pay you the full replacement value of that bottle of wine or spirits should it be lost, damaged or destroyed whilst we are storing or keeping it for you. The full replacement value of the bottle shall be as determined by us and our insurer, based upon the Liv-ex market price at the time of loss, damage or destruction.
12.7 Please note that if you expressly ask us not to insure the bottle of wine whilst we store or warehouse it for you then we will only be liable to you for loss, damage or destruction of the wine up to the limits of our liability set out in UKWA’s standard contract conditions for logistics.
12.8 You may remove wine listed in your storage account from the authorised warehouses at any time in accordance with UKWA’s standard contract conditions for logistics.
12.9 Liv-ex is also a member of the British Internal Freight Association (BIFA), Membership No 2639. When we provide transportation services to you (whether as part of a transaction carried out using the wine exchange or otherwise) we shall do so under and subject to BIFA’s standard trading conditions (or equivalent replacement terms) and the provisions of clause 12.10. In the event of any conflict between these terms and BIFA’s standard trading conditions, these terms will prevail.
12.10 In respect of each bottle of wine or spirits that we transport for you, unless you expressly ask us not to in respect of that bottle of wine before we start the transportation:
12.10.1 we will insure that bottle for its full replacement value in case of loss, damage or destruction whilst it is under our control;
12.10.2 we will charge you for the cost of that insurance;
12.10.3 our insurance policy is available on our website https://www.liv-ex.com/wp-content/uploads/2024/12/Key-Insurance-Facts.pdf, and you agree that you are aware of the exclusions in that policy; and
12.10.4 we will, at our discretion and in full and final settlement of our liabilities to you, replace or pay you the full replacement value of that bottle of wine should it be lost, damaged or destroyed whilst we are transporting it for you. The full replacement value of the bottle shall be as determined by us and our insurer, based upon the Liv-ex market price at the time of loss, damage or destruction.
12.11 Please note that if you expressly ask us not to insure the bottle of wine whilst we transport it for you then we will only be liable to you for loss, damage or destruction of the wine up to the limits of our liability set out in BIFA’s standard trading conditions.
SELLING WINE USING THE WINE EXCHANGE
13 Making an offer to sell wine
13.1 You may offer to sell wine through the wine exchange in accordance with the site or API procedures for making an offer to sell wine, which can be found in the help or developers’ section of the site.
13.2 You acknowledge and agree that each offer you make to sell wine through the wine exchange is a firm and unconditional offer to sell, which, until withdrawn or amended by you in accordance with clause 13.4, may be accepted by us at any time.
13.3 The currency in which you offer wine for sale must be pounds sterling unless agreed otherwise by us.
13.4 You may amend, vary or withdraw an offer to sell in accordance with the site procedures for amending, varying or withdrawing offers, which can be found in the help section of the site. Any amendment, variation or withdrawal you make will be deemed to take effect from the time when it is posted on the site.
13.5 In relation to each offer you make to sell wine through the wine exchange you warrant and represent to us that:
13.5.1 all information provided by you in relation to the offer, including the description and condition of the wine offered for sale, is accurate, complete and up-to-date;
13.5.2 the wine offered for sale meets the standard trade rules (please see clause 27.1 below for details of the standard trade rules), unless the wine is offered for sale as a special item or en primeur;
13.5.3 the wine offered for sale is fit for human consumption;
13.5.4 you will not sell the wine offered for sale to anyone other than us and the wine is available for delivery to us in accordance with these terms and conditions should we choose to accept your offer;
13.5.5 you are selling the wine offered for sale in the course of your business and you hold all necessary licences to offer for sale and sell wine through the wine exchange;
13.5.6 where you are a UK registered business selling duty paid stock you have both an AWRS registration number and a VAT registration number that must be provided to us before any duty paid wine is offered for sale;
13.5.7 your offer and your sale of the wine to us does not, and will not, breach any applicable law, statute or regulation;
13.5.8 you are the legitimate owner of the wine offered for sale or you are authorised to offer the wine for sale and sell the wine by the true owner; and
13.5.9 you are able to legally and legitimately transfer to us title to the wine offered for sale free from all charges, liens and other third-party rights and encumbrances.
13.6 You must not seek to directly or indirectly manipulate the price we pay for the wine you offer for sale through the wine exchange.
14 Accepting your offer to sell
14.1 If we receive a bid from another trading member to buy the wine you have offered for sale at the price at which you offered that wine for sale then we will notify you by email that we accept your offer to sell and we will remove your offer to sell from the wine exchange. Please note that we rely on the warranties and representations you give us in clause 13.5 when accepting your offer. A legally binding contract of sale for that wine is made between you and us at the time that we send you an email notifying you that we accept your offer to sell, irrespective of whether you receive that email.
14.2 Each contract of sale is a separate agreement between you and us and incorporates these terms and conditions. A contract of sale consists of your offer to sell posted on the site, our email notifying you that we accept your offer to sell and these terms and conditions, to the exclusion of all other terms and conditions (including any terms and conditions which you may purport to apply under any purchase or sales order, confirmation of order, invoice or similar document), and supersedes all prior agreements, arrangements, statements and understandings in respect of the same.
14.3 Notwithstanding any other provision of these terms and conditions or any contract of sale, we may cancel a contract of sale before it has been fulfilled without incurring any liability to you where:
14.3.1 the trade has not been fulfilled for any reason within 90 days from the date on which we have notified each party that the offer has been accepted; or
14.3.2 both you and we agree in writing that the contract of sale should be cancelled; or
14.3.3 we find that the bid from the trading member to buy the wine you have offered for sale has been made in error; or
14.3.4 we determine that the contract of sale should be cancelled due to a breach of these terms, or due to the occurrence of suspicious activity.
14.4 Subject to clause 14.5, cancellation of a trade will be without prejudice to any rights or remedies which any party may have arising from failure by a party to fulfil its obligations.
14.5 Liv-ex will not be liable to any buyer for any failure or default on the part of a seller to fulfil its obligations in relation to any trade, bid or offer.
14.6 Please note that we are under no obligation to cancel any erroneous bid, offer or trade which has been made by a user. In particular, if a ‘fat finger’ warning has been generated and such warning has been ignored or the fat finger warning function has been overridden then we will not cancel the trade.
15 Transaction Fee
15.1 We will charge you a transaction fee for each contract of sale made between you and us where you are the seller. This fee is made up of a commission fee on the sale together with a fixed settlement fee. Details of how we calculate the commission and settlement fee can be found on the site or obtained from us on request.
16 Delivery, title and risk
16.1 In relation to each contract of sale, you must deliver the wine either at your own cost or via an official Liv-ex collection service to one of the authorised warehouses within 14 days of the date that the contract of sale is made, unless you have stated in your offer to sell that you will deliver later, in which case you must deliver the wine on or before the date you have stated you will deliver it. If you are utilising a Liv-ex collection service you should make the wine available for collection on your first scheduled collection post the date the contract of sale is made.
16.2 You are responsible for complying with any export and import requirements which may apply in respect of any wine you deliver to us. Any costs, charges or fines payable in respect of inaccurate or incomplete documentation will be payable by you.
16.3 Title to the wine passes to us at the time the contract of sale is made and risk in the wine passes to us once the wine has been delivered to an authorised warehouse or the wine has been collected from you by an official Liv-ex collection service and the authorised representative at the warehouse or collection service has signed a proof of delivery note for the wine.
16.4 You are not permitted to specify that Liv-ex is the ‘importer’ or receiver on any applicable customs documentation unless authorised by us.
16.5 Please note that applicable packaging and recycling rules will not generally apply to us as the products which we buy and sell are generally in bond. We will not be responsible for ensuring that any applicable labelling requirements in any territory are complied with.
16.6 The parties to the transaction will be the seller, Liv-ex and the end buyer. Intermediaries who are providing storage, settlement or distribution services will not be parties to any transaction unless we agree otherwise.
17 Conformity of delivered wine
17.1 We will not be deemed to have accepted that the wine you sell to us conforms with the terms of your offer until the time that the trading member to which we sell on the wine accepts that the wine conforms with the terms of the contract of sale we have made with it. We will notify you promptly if, before we accept the wine, we decide that the wine does not conform with the terms of your offer.
17.2 Where we notify you that the wine does not conform with the terms of your offer, you must deliver to us replacement wine that does conform with your offer within 14 days of the date that the contract of sale is made. We will keep the non-conforming wine until we receive replacement wine that does conform to the terms of your offer (whether from you or through the purchase of replacement wine in accordance with clause 17.3).
17.3 If we do not receive the wine within 14 days of the date that the contract of sale is made (whether as a result of the wine not conforming to the contract of sale or otherwise) then we may:
17.3.1 purchase replacement wine on the wine exchange at the best available offer and charge you for the full purchase price of the replacement wine together with an additional transaction fee in respect of the replacement wine contract of sale; and/or
17.3.2 suspend your right to use the wine exchange and/or suspend your membership, which entitles you to use the site and the Liv-ex services under your terms of membership, until all outstanding wine you have sold to us has been delivered.
17.4 If the wine does not conform with the terms of your offer then:
17.4.1 in the case of wine which we determine to be counterfeit or non-compliant with applicable standards we will be entitled to destroy the wine as set out in clause 29.3; or
17.4.2 in the case of non-conforming wine which is not counterfeit or non-compliant with applicable standards, then, subject to discharge of your obligations under clause 17.3 in full we will make the wine available in your storage account.
18 Payment
18.1 In relation to each contract of sale:
18.1.1 we shall raise a self-billing invoice on your behalf for, and we shall be liable to pay you, an amount equal to the sale price; and
18.1.2 we will issue to you an invoice for, and you shall be liable to pay us, our transaction fee.
18.2 We will charge you and you must reimburse us for any duty, value added tax and/or other sales taxes and/or any customs, import or export duties we are liable to pay on any wine we purchase from you.
18.3 We will only raise a self-billing invoice on your behalf and invoice you for our transaction fee in respect of the contract of sale once the wine you have sold to us has been listed in our storage account.
18.4 You must pay us for our transaction fee and any amounts we charge you under clause 18.2 in accordance with clauses 32 and 33.
18.5 We will pay you for the wine in accordance with clauses 32 and 33.
BUYING WINE USING THE WINE EXCHANGE
19 Placing a bid to buy wine
19.1 You may bid to buy wine through the wine exchange in accordance with the site or API procedures for placing a bid to buy wine, which can be found in the help or developers’ section of the site.
19.2 You acknowledge and agree that each bid you place to buy wine through the wine exchange is a firm and unconditional bid to buy, which, until withdrawn or amended by you in accordance with clause 19.4, may be accepted by us at any time.
19.3 The currency in which you bid to buy wine must be pounds sterling unless agreed otherwise by us.
19.4 You may amend, vary or withdraw a bid to buy in accordance with the site procedures for amending, varying or withdrawing bids, which can be found in the help section of the site. An amendment, variation or withdrawal you make will be deemed to take effect from the time when it is posted on the site.
19.5 In relation to each bid you make to buy wine through the wine exchange you warrant and represent to us that:
19.5.1 all information provided by you in relation to the bid is accurate, complete and up-to-date;
19.5.2 you are bidding to buy wine that meets the standard trade rules (please see clause 27.1 below for details of the standard trade rules), unless you are bidding to buy wine as a special item or en primeur;
19.5.3 you are buying the wine you have bid to buy in the course of your business and you hold all necessary licences to bid to buy and to buy wine through the wine exchange;
19.5.4 your bid and your purchase of the wine from us does not, and will not, breach any applicable law, statute or regulation; and
19.5.5 you have the necessary funds to be able to buy the wine you have bid to buy.
20 Accepting your bid to buy
20.1 If we receive an offer from another trading member to sell the wine you have bid to buy at the price at which you have bid to buy that wine then we will notify you by email that we accept your bid to buy and we will remove your bid from the wine exchange. Please note that we rely on the warranties and representations you give us in clause 19.5 when accepting your bid. A legally binding contract of sale for that wine is made between you and us at the time that we send you an email notifying you that we accept your bid to buy, irrespective of whether you receive that email.
20.2 Each contract of sale is a separate agreement between you and us and incorporates these terms and conditions. A contract of sale consists of your bid to buy posted on the site, our email notifying you that we accept your bid to buy and these terms and conditions, to the exclusion of all other terms and conditions (including any terms and conditions which you may purport to apply under any purchase or sales order, confirmation of order, invoice or similar document), and supersedes all prior agreements, arrangements, statements and understandings in respect of the same.
20.3 Notwithstanding any other provision of these terms and conditions or any contract of sale, we may cancel a contract of sale before it has been fulfilled without incurring any liability to you where:
20.3.1 the trade has not been fulfilled for any reason within 90 days from the date on which we have notified each party that the offer has been accepted; or
20.3.2 both you and we agree in writing that the contract of sale should be cancelled; or
20.3.3 we find that the offer from the trading member to sell the wine you have bid to buy has been made in error; or
20.3.4 we determine that the contract of sale should be cancelled due to a breach of these terms, or due to the occurrence of suspicious activity.
20.4 In relation to each contract of sale, we warrant to you that:
20.4.1 we will supply you with wine that meets the description and condition of the wine you have bid to buy at the price at which you have bid to buy that wine;
20.4.2 we will supply you with wine that meets the standard trade rules (please see clause 27.1 below for details of the standard trade rules), unless the wine you have bid to buy is a special item or en primeur;
20.4.3 we will supply you with wine that is fit for human consumption; and
20.4.4 we have and will have at all relevant times full legal and beneficial title to the wine we supply to you, free from all charges, liens and other third-party rights and encumbrances.
20.5 In relation to each contract of sale, the warranties stated in clause 20.4 are in lieu of all other conditions, warranties or other terms concerning the supply or purported supply of, failure to supply or delay in supplying the wine that is the subject of that contract of sale which might but for this clause 20.5 be implied or incorporated into that contract of sale by statute, common law or otherwise, all of which are excluded to the extent permitted by law.
21 Transaction fee
21.1 We will charge you a transaction fee for each contract of sale made between you and us where you are the buyer. This fee is made up of a commission fee on the sale together with a fixed settlement fee. You will receive free storage and insurance of the wine for three months while it is stored with us. Details of how we calculate the commission and settlement fee can be found on the site or obtained from us on request.
22 Delivery, title and risk
22.1 In relation to each contract of sale, we will be deemed to have delivered the wine to you and risk in the wine has passed to you at the time we add the wine to your storage account and notify you that we have done so. We will add the wine to your storage account and arrange delivery / collection if requested within one month of the date of the contract of sale, provided that before this date we have received the conforming wine from the seller and full payment for the wine from you.
22.2 Title to the wine passes to you at the time that we have invoiced the value of the wine to you and we receive from you full payment in cleared funds for:
22.2.1 the wine; and
22.2.2 all other related sums which are or which become due to us from you on any account.
22.3 You grant us, our agents and employees an irrevocable licence at any time to enter any premises where the wine is or may be stored in order to inspect it, or, where your right to possession has terminated, to recover the wine.
22.4 Risk in the wine passes to you at the time we notify you that we have added the wine to your storage account.
22.5 You will be responsible for complying with any export and subsequent import requirements which may apply in respect of any wine you purchase from us.
23 Conformity of wine
23.1 In relation to each contract of sale you are responsible for verifying that the wine we sell to you conforms with the terms of that contract as soon as possible after the wine is added to your storage account.
23.2 At your request and your cost we will take a photograph of the wine and provide you via the site with a copy of the photograph of the wine we sell you.
23.3 If you find that the wine does not conform with the terms of the contract of sale then you must notify us of this fact by email or post within 14 days of the date the wine is added to your storage account. If we do not receive notification from you within this period then you will be deemed to have accepted that the wine conforms with the terms of the contract of sale.
23.4 If you notify us that the wine does not conform with the terms of the contract of sale then you must provide us with reasonable evidence supporting your claim and, where you have removed the wine from the authorised warehouses, promptly return the wine to us. Unless we dispute your claim, we will, at our discretion and by way of full and final settlement of all our obligations and liabilities under our contract of sale with you for that wine, either:
23.4.1 refund any monies you have paid to us for the non-conforming wine; or
23.4.2 replace the non-conforming wine with wine that conforms to the terms of the contract of sale.
24 Payment
24.1 In relation to each contract of sale we will charge you, and you shall be liable to pay to us, an invoiced amount equal to:
24.1.1 your bid price; and
24.1.2 our transaction fee.
24.2 You are responsible for paying any duty, value added tax and/or other sales taxes and/or any customs, import or export duties and/or any other miscellaneous charges that may be incurred on any wine you purchase from us. We will charge you and you must reimburse us for any duty, value added tax and/or other sales taxes and/or any customs, import or export duties we are liable to pay on any wine we sell to you.
24.3 We will invoice you for the full amount once the wine we have sold to you has been added to our storage account and verified by us.
24.4 You must pay us for the wine, our transaction fee and any amounts we charge you under clause 24.2 in accordance with clauses 32 and 33.
24.5 If you buy wine on the wine exchange and you fail to pay us for the wine in full by the due date for payment or you notify us that you are unable or unwilling to pay for the wine then we may sell that wine on the wine exchange at the best available bid price. Where there is no bid for the wine we may offer the wine for auction with a reserve at 50% of the current “market price”. If there is any shortfall between the price you are liable to pay us for the wine and the price at which we sell the wine, you will be liable to pay us the shortfall in full.
SPECIAL TRANSACTIONS
25 Applicability of terms and conditions to special transactions
25.1 Although most of the provisions of these terms and conditions relating to the buying and selling of wine through the wine exchange apply to wine sold as a special item, en primeur or at auction, because of the special nature of these transactions the standard provisions of these terms and conditions are amended as set out in:
25.1.1 clause 26 for wine sold en primeur;
25.1.2 clause 27 for wine sold as a special item; and
25.1.3 clause 28 for wine sold at auction.
26 En primeur
26.1 You must be authorised by us to sell wine en primeur before you may offer for sale or sell wine en primeur through the wine exchange. Our acceptance or non-acceptance of your application to sell wine en primeur is completely at our discretion. We will require you to provide a bank guarantee in our favour and at your cost equal in amount to the amount of any wine you wish to be paid for, and valid until the end of June two years following the initial en primeur offering. Where the administrative costs of a guarantee are prohibitive, we will also accept cash margin equal to 100% of the amount of any wine you wish to be paid for.
26.2 In relation to each contract of sale for wine sold en primeur made between us and you where you are the seller you must deliver that wine either at your own cost or via an official Liv-ex collection service to one of the authorised warehouses as soon as the wine is available, and at the very latest by the end of May two years following the initial en primeur offering by the chateau/grower/property producing the wine (the “deadline”) or failing that within 60 days of the bottled wine being ready for collection at the chateau/domain/property.
26.3 If you notify us that you are unable to deliver or have available for collection wine sold en primeur by the deadline or we have not received the wine before the deadline, we reserve the right to call upon the bank guarantee, or use the cash margin deposit, and purchase the wine on the exchange at the best available offer.
26.4 Where the cost of purchasing the wine under clause 26.3 exceeds the amount we receive from calling on the bank guarantee, or using the cash margin deposit, you will be liable to pay us the difference in full.
26.5 In addition, where we do not receive any wine before the deadline or the agreed delivery date (if later), then your right to sell wine en primeur through the wine exchange will be suspended until all such wine has been received by us.
26.6 In relation to each contract of sale for wine sold en primeur made between us and you where you are the buyer you acknowledge, understand and agree that:
26.6.1 the wine will be made available to you by the end of June two years following the initial en primeur offering by the chateau/grower/property producing the wine, or if later, as soon as it is available;
26.6.2 the risks involved in purchasing wine en primeur are generally greater than in purchasing other types of wine;
26.6.3 in the event that you buy en primeur wine in a bottle or pack size that is at the time of bottling not made available by the chateau/grower/property producing the wine then we reserve the right to deliver the wine in a different bottle or pack size, providing the overall quantity of wine we supply to you is the same; and
26.6.4 the limits and exclusions of liability set out in clause 40 apply to that contract of sale.
27 The Standard Trade Rules and Special Items
27.1 The basis of the wine exchange is that trading members are offering to sell wine or bidding to buy wine that meets the standard trade rules. The standard trade rules are set out on our website: https://www.liv-ex.com/faq/liv-ex-trading-contracts/
27.2 Determining which wine does or does not comply with the standard trade rules rests entirely at our discretion.
27.3 If you wish to offer to sell or bid to buy wine through the wine exchange that does not meet the standard trade rules and is not sold en primeur then you must offer that wine as a special item. Details of how you offer to sell or buy wine as a special item can be found in the help section of the site.
27.4 We will be entitled to accept or reject any special item request at our absolute discretion. In particular we may not accept wine with active woodworm, or where the wine cannot be held safely in the bottle.
28 Auctions
28.1 Through the wine exchange you may advertise for bids on wine you wish to sell without setting a fixed price at which you will sell that wine or you may make bids for wine offered for sale in this manner. Details of how this auction process works can be found in the help section of the site.
29 Counterfeit wine
29.1 In the event that we suspect any wine offered for sale, sold via the exchange or otherwise received by us to be counterfeit we reserve the right to:
29.1.1 request the offeror / seller / sender of the wine provide any and all information and/or documents certifying the authenticity of the wine (and you agree to provide any such information upon request);
29.1.2 send photographs of the wine to the producer, the local agent, and/or an expert for verification;
29.1.3 suspend and/or remove an offer;
29.1.4 withhold any payments due to the seller up to the value of the wine pending verification;
29.1.5 direct the seller to replace the wine with wine conforming to the contract of sale in accordance with clause 17.3;
29.1.6 send any such wine to the producer, the local agent, and/or an expert for verification;
29.1.7 hold the wine or pass it on to the relevant authorities while the suspected fraud is investigated.
29.2 In the event that any wine offered for sale, sold via the exchange or otherwise received by us is determined to be counterfeit:
29.2.1 the seller shall indemnify us and any buyer of the wine with respect to any costs, claims, liabilities, losses, expenses and damages suffered or incurred by us or any end buyer which arise as a result of the wine being counterfeit;
29.2.2 we may temporarily and/or permanently suspend the offeror’s / seller’s / sender’s rights to sell on the exchange or suspend or terminate their membership;
29.2.3 the seller must refund to us any funds paid to the seller in connection with the sale of the wine and compensate us for any costs incurred by us in relation to the counterfeit wine;
29.2.4 we may deduct from any sums owing to the seller or being held on behalf of the seller, any sums due under this clause.
29.3 You agree and acknowledge that any wine which is determined to be counterfeit may be destroyed by us, or may be impounded or destroyed by the producer and neither us nor any producer will be liable for any such destruction.
ACCOUNTING
30 Trading limits
30.1 At the time you become a trading member we will set up a trading account with a buying limit for you, which is the maximum net exposure to us (including all contracts of sale) we will allow you to have at any time. We will also set a selling limit for you. This is the maximum amount of undelivered wine we will allow you to sell at any time. We may increase or decrease your buying or selling limits from time to time. If we increase or decrease your buying or selling limit it will be reflected immediately in your trading account details.
30.2 We will keep a running total of your exposure by crediting to your trading account any amounts we are liable to pay you in respect of wine you sell to us through the wine exchange that has been receipted in our storage account and verified by us, and debiting from your account any amounts you are liable to pay us under these terms and conditions, including, but not limited to, any amounts you are liable to pay us in respect of wine we sell to you through the wine exchange and our transaction fees. Please note that we will only credit your trading account with the value of wine that you sell to us once the wine has been receipted in our storage account and verified by us.
30.3 You must keep within your trading limits at all times. We will not allow you to buy wine using the wine exchange or use the Liv-ex services if you are above your buying limit. We will not allow you to sell wine using the wine exchange if you are above your selling limit. We will notify you if you exceed either of your trading limits. If you exceed your buying limit then you must either sell some wine via the wine exchange or pay some of the monies you owe us so that your total exposure is reduced below your buying limit. If you exceed your selling limit then you must deliver to us sold wine of sufficient value that has been receipted in our storage account and verified by us so that your total exposure is reduced below your selling limit.
30.4 We reserve the right to suspend your trading limits if any amount you owe us under these terms and conditions remains outstanding after its due date.
31 Margin requirements
31.1 If you wish to increase either or both of your trading limits above the amount otherwise set by us under clause 30, we will consider your request for a higher limit and, if granted, require you to provide cash margin in an amount equivalent to twenty per cent (20%) of the agreed increased amount of trading limit. The required margin amount will be calculated on the buying or selling limit separately.
31.2 Margin payments must be remitted by electronic funds transfer to our designated account which will be maintained by us with a bank in the UK.
31.3 All margin paid by you to us may be pooled with margin payments made by other members and with our funds but will at all times be under our control and we will keep clear records of relevant funds. The margin balance standing to your credit is referred to as your “Margin Balance”.
31.4 We confirm that we will keep clear records of your Margin Balance (save as otherwise set out in this clause 31 or these terms) and we shall not exercise any right of set-off, counterclaim, defence, cross collateralisation or anything analogous thereto against such funds.
31.5 No interest will be payable to you (or any other member) in respect of your Margin Balance.
31.6 No amount in respect of your Margin Balance shall be repayable to you if you have any outstanding delivery or payment obligations to us (whether or not due). Subject to that, you may at any time by written notice ask us to repay to you all or part of the Margin Balance held in respect of your account. We agree to pay you all or part of your Margin Balance (as applicable) within 5 business days of receipt of your written notice. Following such repayment your trading limit will be reduced accordingly.
31.7 If you do not perform your obligations to us when due under and in accordance with these terms and conditions, we shall be entitled to apply all or part of the Margin Balance in or towards discharge of your liabilities to us (of whatever nature, including all transaction fees, costs, expenses or other losses incurred by us, and whether before or after judgement).
32 Invoicing and payment
32.1 We operate weekly payment periods. Each payment period finishes on a Friday. A table setting out the payment periods for the quarter and the normal payment dates is available on the site.
32.2 Subject to clause 32.5, the full amount set out in each invoice that we issue to you in a payment period is due from and payable by you within 7 days of the end of that payment period.
32.3 Subject to clauses 32.5 and 32.6.2, the full amount set out in each self-billing invoice that we issue on your behalf in accordance with these terms and conditions in a payment period is due from and payable by us within 7 days of the end of that payment period.
32.4 At the end of each payment period we will send to you by email a statement showing the total amount of money due from you for that payment period that has not been paid and the total amount of money due from us for that payment period that has not been paid.
Standard Payment (netting off)
32.5 Unless otherwise agreed by us with you in writing, your statement will also show a net position of the difference between the amount of money due from you and the amount of money due from us. If the statement shows that the total amount of money due from you is:
32.5.1 greater than the total amount of money due from us then you must pay to us a sum equal to the difference so that we receive in cleared funds that amount within 7 days of the end of the payment period. You must pay that sum even if you dispute its amount on the understanding that if it is resolved that the sum is too great we will rectify our mistake by promptly making an appropriate payment to you; or
32.5.2 less than the total amount of money due from us then we will pay to you a sum equal to the difference within 7 days of the end of the payment period.
Non-standard payment (payment without netting off)
32.6 Where we have expressly agreed with you in writing not to net off your account:
32.6.1 you must pay to us a sum equal to the total amount of money the statement shows you owe us so that we receive in cleared funds that amount within 7 days of the end of the payment period. You must pay the amount even if you dispute it on the understanding that if it is resolved that the amount is too great we will rectify our mistake by promptly making an appropriate payment to you; and
32.6.2 at the end of the payment period, providing we have received in cleared funds payment from you for the total amount of money you owe us for a payment period we will pay to you a sum equal to the total amount of money due from us within 14 days of the end of the payment period.
Application of payments
32.7 All payments received will be applied to the oldest overdue invoices first. Where no invoices are overdue, on receipt of a remittance advice from you, we can apply payments received according to your instructions.
33 Payments
33.1 All payments made by you or us will be made in pounds sterling unless otherwise agreed.
33.2 We will make all payments by electronic transfer to a nominated bank account in the name of your company.
33.3 You must make all payments due to us by electronic transfer, without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
33.4 Please note that in respect of each sum you owe us you are obliged to ensure that we receive in cleared funds a sum equal to the total amount you owe us. This means that it is your responsibility to cover any bank charges applied by your bank in respect of the payment and to ensure that the amount that reaches our bank account net of bank charges is equal to the total amount you owe us.
33.5 All payments must be made by the legal entity which is our member, we are unable to accept payments by third parties. We may accept payment from third party payment services providers provided that the relevant payment services provider is contracted directly by our member and provided that the payment is properly referenced. We reserve the right to make further enquiries in relation to any payment which is made to us and may refuse to accept or return any payment which we reasonably suspect has not been made by our member pending conclusion of those enquiries.
33.6 When making payments to you we will cover the charges applied by our bank, but you will be responsible for any charges applied by your bank.
33.7 If you fail to pay us any sum due to us when due, or if at any time there is any liability, debt or claim which is owing from you to us:
33.7.1 we may charge you interest on such sum from the due date for payment at the annual rate of 8 per cent above the Bank of England base rate, accruing on a daily basis until payment is made (whether before or after any judgment); and
33.7.2 where you are a trading member:
(a) we will not transfer to your storage account, nor release to you, any wine that you buy from or store with us until such time as you pay the overdue amounts to us in full; and
(b) we may sell on the wine exchange (or otherwise) at the best available bid price, any wine held in our warehouses, paid for or otherwise, that has not yet been physically released to you. This shall include both physical stocks of wine (traded and OFX) and en primeur wine not yet delivered. Any proceeds of the sale shall be remitted to you after deduction for all our expenses (including an administration charge) and all outstanding amounts due to us (including interest) and this clause 33.7.2 shall apply to any debts, liabilities, claims or sums owed to us, whenever the liability for such debts, liabilities, claims or sums arose.
33.8 You agree and acknowledge that to the extent that we are storing wine on your behalf or otherwise in possession of wine and we do not hold title to that wine, that we are appointed as your bailee, and, in that capacity agree to store your wine with reasonable care pending sale, ensuring that it is maintained under appropriate conditions and to notify you in the event that we propose to sell the wine in accordance with clause 33.7 or destroy or deal with the wine in accordance with clause 29. As bailee it is agreed that we shall be entitled to sell the wine and remit any balance to you pursuant to clause 33.7 or in the case of counterfeit wine to destroy or otherwise deal with the wine in accordance with clause 29 and this clause 33.8 shall apply to any debts, liabilities, claims or sums owed to us, whenever the liability for such debts, liabilities, claims or sums arose.
THE SITE AND THE LIV-EX SERVICES
34 Availability of the site and the Liv-ex services
34.1 Subject to the other provisions of these terms and conditions, we will use reasonable endeavours to ensure that the site and the online aspects of the Liv-ex services (such as the online wine exchange) are generally available at all times. We cannot and do not guarantee that Liv-ex services will be available at all times.
34.2 Notwithstanding clause 34.1, there will be times when the site and those services are unavailable. Such unavailability may be planned (for example, where we are carrying out planned maintenance or upgrades) or unplanned (for example, where there is a hardware or software failure). Where possible, we will try to give you reasonable notice of any such unavailability and we will use reasonable endeavours to ensure that disruption resulting from any unavailability is kept to a minimum. If you are a trading member and your bid or offer listings are suspended or disabled for any reason (including but not limited to account suspension or technical disruption) for any period and such listings are re-enabled, it is your responsibility to ensure that the relevant bid or offer listings remain valid.
34.3 You acknowledge and accept that you will not be able to use the site and the Liv-ex services when they are unavailable. We will try to keep unavailability to a minimum, but we accept no liability for any loss or damage you may suffer as a result of the site and/or the Liv-ex services being unavailable. We reserve the right to add to or change the site at any time without notice or explanation and without incurring any liability to you.
34.4 Notwithstanding any other provision of these terms and conditions or any contract of sale, where there is a problem with the wine exchange that results in one or more contracts of sale being made with you at prices that are clearly under or over market value for the wine being sold then we reserve the right, at our absolute discretion, to cancel those contracts of sale before they are fulfilled without incurring any liability to you.
35 Your use of the Site and other Liv-ex services
35.1 You are responsible for providing suitable internet access, computers, mobile devices and telephones to access and use the site and the Liv-ex services and for any telecommunications costs you incur in connection with your use. Please note that the quality of your computers or mobile devices and the quality of your connection will affect your use of the site and the Liv-ex services (for example, the site may seem slow if you have a poor connection).
35.2 You should also check that your computers have suitable protection, such as virus protection. We are not responsible for any computer virus or bug that affects your computers, mobile devices or data as a result of your use of the site or the Liv-ex services or the downloading of any materials from the site.
35.3 You agree to use the site and the Liv-ex services for lawful purposes only and in a manner which is consistent with any and all applicable laws and regulations in the country in which you are established or access the site. Your use of the site must not infringe the rights of, or restrict or inhibit the use and enjoyment of the site by, any third party. You agree not to import or transfer to the site either directly or indirectly any information or other content which is or may be:
35.3.1 inaccurate, misleading, defamatory, obscene, abusive or offensive;
35.3.2 in breach of any intellectual property right, privacy, publicity or any other rights of any third party; or
35.3.3 damaging to the software or performance of the site.
35.4 You must not use the site to send unsolicited or unauthorised advertising such as “junk mail” or “spam”.
35.5 You must not engage in any other conduct which, in our sole discretion, is considered inappropriate, unauthorised or objectionable.
35.6 You must not disclose or publicise your identity to other members while using the site or services.
36 Links
36.1 Where we provide hypertext links to other web sites or contacts, we do so for information purposes only and such links do not constitute an endorsement or recommendation by us of any products or services in such sites. You use such links entirely at your own risk and we accept no responsibility for the content or use of such web sites or for the information contained on such sites (including any web site through which you may have gained access to the site). You may not create a link to the site, nor frame it without our written permission.
37 Site Content
37.1 Information posted on the site is either posted by us or by members. We are not responsible for information posted by members.
37.2 Although we take pride in the site and aim to keep it up to date, please note that information we post may, at times, be incomplete, out of date or inaccurate. If you wish to rely on any information we post then we recommend that first you confirm with us that the information you wish to rely on is correct. The content of the site is subject to change at any time.
37.3 Upon becoming a member, you grant to us a non-exclusive, royalty-free, irrevocable and world-wide licence to use any images, information, logos, marks, text, graphics, and any other content that you provide to us and/or upload or otherwise add to the site in connection with the Liv-ex services. Such use will include modifying such content and publicly displaying it on the site or using it as part of the Liv-ex fine wine information. We may use this content both whilst you are a member and following the end of your membership. You warrant and represent to us that (i) you have the right to grant to us the rights and licences granted (or purported to be granted) under this clause; and (ii) the exercise of any of the rights or licences granted (or purported to be granted) to us under this clause neither infringes nor will infringe the rights (including the intellectual property rights) of any third party.
37.4 You agree not to use the mark LIV-EX or any other trademarks owned by us, or imply any association with or endorsement by Liv-ex except as specifically permitted under these terms and conditions.
37.5 You agree that you will not without our prior written consent give, publish or make available any indication, suggestion or statement that Liv-ex has any form of partnership or association with you.
37.6 You agree not to bid on keywords or phrases in your digital advertising, nor use in your advertising copy, Liv-ex’s brand terms including, but not limited to, Liv-ex, LWIN and Wine Matcher (including variations of them such as “livex” or “liv ex”).
37.7 We own or are licensed to use all copyright, trademarks and other intellectual property rights in and/or relating to the site and the Liv-ex services. You may use those intellectual property rights only as set out in these terms and conditions. You may not distribute, disseminate, show in public or create any derivative works of any materials that are not yours that you find on, or copy or download from, the site.
37.8 In particular, you must not use any robot, spider, scraper, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather content or materials, including but not limited to the Liv-ex fine wine information, from the site or reproduce or circumvent the navigational structure or presentation of the site. You agree to comply with any robot exclusion headers on the site.
DISPUTES, LIABILITY AND TERMINATION
38 Disputes
38.1 If you and we cannot resolve any dispute between us in relation to these terms and conditions or any contract of sale between you and us for the sale or purchase of wine then either you or we may refer the dispute for resolution by the Exchange Committee.
38.2 The Exchange Committee will conduct any dispute resolution proceedings as it sees fit. The decision of the Exchange Committee in respect of a dispute will be final and binding on you and us and, except in the event of manifest error, not subject to appeal.
38.3 The fees incurred by you, us and the Exchange Committee in connection with the conduct of any dispute resolution proceedings will be borne by us and you in the proportions determined by the Exchange Committee.
38.4 The provisions of this clause 38 will not prevent either you or us taking action through the courts where either you or we reasonably determine that such action is appropriate to protect our/your (as applicable) legitimate interests.
39 Indemnity
39.1 You shall indemnify us against all costs, damages, losses and expenses we incur as a result of your failure to comply with any of your obligations under:
39.1.1 these terms and conditions; and
39.1.2 any contract of sale between you and us for the sale or purchase of wine through the wine exchange.
40 Our liability to you
40.1 Nothing in these terms and conditions or any contract of sale between you and us for the sale or purchase of wine through the wine exchange shall exclude or limit our liability for:
40.1.1 death or personal injury arising from our negligence;
40.1.2 fraud or fraudulent misrepresentation; or
40.1.3 any other liability that cannot be limited or excluded by law.
40.2 Subject to clause 40.1, we will not be liable to you under any statute or in contract, tort or otherwise for any indirect or consequential loss or damage which arises out of or in relation to these terms and conditions or any contract of sale between you and us for the sale or purchase of wine through the wine exchange.
40.3 Subject to clauses 40.1, 40.4 and 40.5, our total aggregate liability to you under or in connection with these terms and conditions, the site, the wine exchange and the other Liv-ex services (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited in each calendar year to the annual membership fee payable by you for that year.
40.4 Subject to clause 40.1, our total aggregate liability to you under or in connection with any contract of sale between you and us for the sale of wine by you to us through the wine exchange (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited to the price payable by us for that wine under that contract of sale.
40.5 Subject to clause 40.1, our total aggregate liability to you under or in connection with any contract of sale between you and us for the sale of wine by us to you through the wine exchange (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited to the price payable by you for that wine under that contract of sale.
41 Termination
41.1 We may terminate your membership, which entitles you to use the site and the Liv-ex services under your terms of membership, with immediate effect by giving you notice of termination by email or post if:
41.1.1 you commit any material or repeated breach of these terms and conditions or any contract of sale and either that breach is not capable of remedy, or, if capable of remedy, you fail to remedy the breach within 14 days from the date we notify you of it;
41.1.2 insolvency or winding-up proceedings are instituted by or against you; a receiver, liquidator or administrator is appointed for you; a substantial part of your assets is the object of attachment, sequestration or other type of comparable proceeding; you are unable or admit in writing your inability to pay your debts as they fall due; or you take or suffer any similar action in any country in which you are resident;
41.1.3 you make an arrangement or composition with your creditors; you commit an act of bankruptcy; a receiving order is made against you; or you take or suffer any similar action in any country in which you are resident;
41.1.4 you or any of your connected persons are charged with or convicted of a relevant criminal offence; or
41.1.5 you provide inaccurate information on your application form and/or fail to notify Liv-ex of a relevant criminal offence in accordance with clause 5.6; or
41.1.6 you engage in any conduct while using or accessing our services which we reasonably consider to be unlawful, unethical or immoral.
41.2 We may also suspend your membership, which entitles you to use the site and the Liv-ex services under your terms of membership, or any part of it with immediate effect if:
41.2.1 you commit any breach of these terms and conditions;
41.2.2 you commit any breach of a contract of sale;
41.2.3 you or any of your connected persons are charged with or convicted of a relevant criminal offence;
41.2.4 you provide inaccurate information on your application form and/or fail to notify Liv-ex of a relevant criminal offence in accordance with clause 5.6; or
41.2.5 you engage in any conduct while using or accessing our services which we reasonably consider to be unlawful, unethical or immoral.
41.3 And it is agreed that during any period of suspension of your membership, your membership fees will continue to be due in full and will not be refunded for any period of suspension.
41.4 If your membership is terminated:
41.4.1 we will not enter into any new contracts of sale with you after termination;
41.4.2 we and you must honour all contracts of sale between you and us for the sale or purchase of wine through the wine exchange that are concluded prior to the date of termination;
41.4.3 all rights and licences granted to you by us under these terms and conditions will automatically terminate on termination; and
41.4.4 you must destroy or return to us (at our option) all copies of the Liv-ex property then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
41.5 Clauses 1, 3, 4.5, 4.6, 4.7, 4.10, 5.5, 5.6, 6.2, 6.4, 7.2, 7.3, 8, 9, 12, 13, 14 to 25 (inclusive), 26, 27, 29, 30, 31, 32, 33, 34 to 46 (inclusive) of these terms and conditions shall survive termination and shall continue to apply as shall any other provision which by its nature is intended to survive termination.
41.6 For the purposes of this clause 41, clause 4.7 and clause 5.6:
41.6.1 “relevant criminal offence” means:
(a) an offence involving dishonesty, fraud, perjury, and/or bribery;
(b) an offence for which a custodial sentence was received;
(c) any other offence that Liv-ex or the Exchange Committee reasonably considers relevant to your suitability for continued membership;
41.6.2 “connected persons” includes directors, shadow directors, persons with significant control and any other senior employees.
MISCELLANEOUS
42 Data Protection
42.1 You and we each agree to comply with all applicable laws and regulations relating to the processing of personal data and privacy as may be applicable from time to time (“Data Protection Legislation”), including the Data Protection Act 2018, “GDPR” (EU General Data Protection Regulation 2016/679) and UK GDPR (being the retained law version of GDPR adopted into UK law), and any successor legislation in the processing of personal data pursuant to this Agreement. This clause does not relieve, remove or replace a party’s obligations under Data Protection Law.
42.2 We are the controller of personal data we process in relation to our members accordance with the provision of our services. Information about how we process personal data is set out in our privacy policy.
42.3 In accordance with the requirements of Data Protection Legislation we agree that we will: a) comply with the principles set out in Article 5 GDPR; and b) process data only if and to the extent at least one of the legal bases set out in Article 6 of the GDPR applies; and c) give necessary information under Article 13 GDPR to any data subject whose personal data may be comprised in personal data; and d) enable any relevant data subject to exercise their data rights under GDPR; and e) adopt appropriate technical and organisational measures in accordance with Article 32 GDPR; and f) engage third party processors of the personal data in accordance with Article 28; and g) not transfer the relevant data internationally save in accordance with the requirements of the GDPR.
43 Multiple language versions
43.1 Where these terms and conditions have been prepared in languages other than English, this is for reference purposes only. In the event of any differences between the English version and the non-English version, the English version shall prevail.
44 Assignment
44.1 You must not assign or dispose of any of your rights or obligations under these terms and conditions or any contract of sale between you and us for the sale or purchase of wine through the wine exchange without our prior written consent.
45 General
45.1 We will not be liable to you for any breach of our obligations under these terms and conditions or any contract of sale to the extent that the breach is due to circumstances beyond our reasonable control.
45.2 If at any time any provision of these terms and conditions or any contract of sale is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of these terms and conditions or any contract of sale, or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of these terms and conditions or any contract of sale.
45.3 No delay or failure on the part of you or us in exercising or enforcing any right or remedy under these terms and conditions or any contract of sale between you and us for the sale or purchase of wine through the wine exchange will be deemed to be a waiver of any such right or remedy, nor will that failure operate to bar the exercise or enforcement of such right or remedy at any future time.
45.4 Nothing in these terms and conditions or any contract of sale and no action taken by you or us under these terms and conditions or any contract of sale shall constitute, or be deemed to constitute, between you and us a partnership, association, joint venture or other cooperative entity or arrangement.
45.5 These terms and conditions, together with the details of your membership application, the quote and any section of the site referred to in these terms and conditions, contain the entire agreement and understanding between you and us in relation to their subject matter, and supersede all prior agreements, arrangements, statements and understandings in respect of the same.
45.6 All rights and remedies available to us for breach of these terms and conditions or any contract of sale are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
45.7 These terms and conditions and each contract of sale between you and us in respect of the sale or purchase of wine through the wine exchange are governed by and will be construed in accordance with the laws of England and Wales and you and we hereby submit to the non-exclusive jurisdiction of the courts of England and Wales in respect of the same.
45.8 Liv-ex Ltd does not and will not knowingly support or deal with any business involved in slavery and human trafficking. By signing our terms you confirm to us that you agree with our values and ethics, and that where your organisation is governed by the Modern Slavery Act 2015 you have put in place appropriate policies and due diligence procedures to ensure that that there is no modern slavery or human trafficking in your supply chains or in any part of your business. A full copy of our Modern Slavery Act Statement is available on the website.
46 Contacting us
46.1 If you are in any doubt as to the accuracy and currency of any information posted on or downloaded from the site, or if you require any further information or have any other query please contact us at www.liv-ex.com.