VINTRUST USER AGREEMENT
By using the Vintrust (herein referred to as “Vintrust” or “the warehouseman”) website or any of Vintrust’s services, you (the “Customer”) thereby legally bind yourself to the terms and conditions of the Vintrust User Agreement (the “Agreement”) stated below. Vintrust recommends that each Customer regularly review the User Agreement, as it is subject to change at any time.
Customer must completely read, agree with and accept all of the terms and conditions expressly stated in this User Agreement prior to registering as a Vintrust customer.
Release.
Customer agrees to release Vintrust from any liability, damage, injury or loss (monetary or otherwise), that Customer incurs as a result of his/her use of Vintrust’s website, services or products, except as expressly described herein. Vintrust expressly disclaims any liability, damage, injury or loss (monetary or otherwise) that Customer incurs through his/her reliance upon the accuracy and completeness of the information within this website or the information attendant to or included in any of the services provided by Vintrust.
Accuracy and Completeness.
Vintrust makes no representations or warranties with regard to the accuracy or completeness of the information contained within this website or within any of the services provided by Vintrust.
Third Party Information.
The Vintrust website contains information from third-party sources, including wine reviews, valuations and commentaries, some of which sources have no formal affiliation with Vintrust. Vintrust makes no representations or warranties regarding the accuracy, completeness, fitness for use or intended purpose of any third-party information.
Investment Risk.
Vintrust realizes that some customers may regard wine either as a speculative investment or as an asset of monetary significance or stable value. Neither Vintrust nor any information contained in its website should be interpreted to promote or assist in the practice of speculative wine investment or to promote the monetary significance or stability of such investments. All investments, along with their attendant risks, should be carefully considered by the investor. Neither this website nor any associated Vintrust service constitutes an investment recommendation or the promotion of any Vintrust service as an investment vehicle or consultation service. Vintrust expressly disclaims any liability, damage, injury or loss (monetary or otherwise) that you incur through your reliance upon or use of this website, its information and Vintrust services for investment purposes.
Systems, Hardware and Software.
Vintrust makes no representations or warranties as to the freedom of its information technology systems, hardware and software from viruses, code or other systems-, hardware- or software-related flaws that may harm customer’s computer or compromise the quality or security of customer’s use of the Vintrust website or its services. Furthermore, Vintrust makes no representations or warranties as to the availability of its website and disclaims all liability for any losses attributable to the website’s lack of availability or reliability in this regard.
Cellarage.
Rates for wine cellarage are stated on a per bottle per month basis on the Vintrust website. One month’s cellarage fee will be charged for each calendar month, and/or any portion thereof, for which each bottle of wine is cellared. The monthly cellarage fee for each month shall be charged to the customer on or near the first day of the subsequent month. In no event shall the Customer be entitled to a pro-rated charge, regardless of the number of days for which goods are cellared within any month. Cellarage rates are subject to change at any time, and shall be communicated to Customer at least thirty (30) days prior to the effective date of any such change.
Pickup, Handling, Inventorying, and Delivery.
Rates for wine pickup, handling, inventorying and delivery services, as set forth on the Vintrust website, as amended from time to time and hereby incorporated by reference, are stated on a per bottle, per box or per incident charge. Rates are subject to change at any time, and shall be communicated to Customer at least thirty (30) days prior to the effective date of any such change. Wine may be picked up or delivered upon written instructions only, and must be pre-approved by the Customer; email, facsimile delivery of instructions by Customer shall be considered duly authorized written instructions with regard to the foregoing. Vintrust shall not be responsible for any typographical or clerical errors contained in instructions sent by the Customer, whether by e-mail, fax or letter. Requests for pickup and delivery of wine shall be made directly to Vintrust. All wine designated for cellarage must be properly packaged for pickup, cellarage, inventorying and handling by the Customer prior to pickup by Vintrust or delivery to the cellarage facility, and clearly marked with the Customer’s name.
Other Services.
Rates for other services consist of a per hour, per occurrence or per order charge. Rates are subject to change at any time, and shall be communicated to Customer at least fifteen (15) days prior to the effective date of any such change.
Accurate Description of Wine/Lawful Entitlement.
Customer represents and agrees as follows: that all wine picked up or cellared by Vintrust will be accurately and completely described in manifest documentation that shall be annexed to this Agreement and incorporated herein by reference, as amended from time to time; that Customer is the sole owner or otherwise legally entitled to submit the wine to Vintrust for the provision of Vintrust’s services described hereunder; and that all wine placed in the custody of Vintrust is not subject to any encumbrance or lien that may prevent or restrict the Customer from submitting the wine to Vintrust for the provision of services described hereunder.
Other Services.
Rates for other services as set forth on the Vintrust website consist of a per hour, per occurrence, per item or per order charge. Rates are subject to change at any time, and shall be communicated to Customer at least thirty (30) days prior to the effective date of any such change.
Customer’s Right to Manifest of Wine Upon Pickup / Lawful Entitlement.
Customer represents and agrees as follows: that Customer’s right or request to receive a manifest containing a description of wine picked up by Vintrust shall be limited to the number of boxes and unboxed bottles picked up by Vintrust, and that this number shall be affixed to manifest documentation delivered to the Customer at the time of pickup; that Customer is the sole owner or otherwise legally entitled to submit the wine to Vintrust for pickup or for the provision of any services described hereunder or on the Vintrust website.
Suitability and Fitness.
Customer acknowledges and agrees that Customer has made his or her own inquiries as to the suitability and fitness of Vintrust for the purposes of providing the services described herein, and that Customer has not relied on any representations made by Vintrust or its representatives other than those described in this Agreement.
Payment.
Payment for the each month of cellarage services and all other services described above shall be due and payable to Vintrust on the first day of each month for the prior month’s cellarage and other services. Payment may be made to Vintrust by customer via credit card, direct debit or personal check. Vintrust reserves the right to validate and authorize credit, debit and checking accounts of Customer for all estimated charges prior to the actual provision of services.
Unpaid Balances.
If Customer shall fail to pay when any service charge is due and payable hereunder, then interest at the rate of 1.5% per month shall accrue on such unpaid charge from and after the date on which such charge shall be due and payable, and such interest, together with a late charge of $25.00, shall be paid by Customer to Vintrust at the time of payment of the delinquent sum. Payments received by Vintrust may be applied first to late charges and/or the oldest services charges due, at Vintrust’s sole discretion. If Customer shall deliver a check to Vintrust which is dishonored for any reason, Customer shall pay Vintrust an additional charge of $50.00 for Vintrust’s expense in connection therewith, and all future payments hereunder by Customer shall be made by bank or cashier’s check or money order. In the event that Customer shall fail to pay when due any charge due and payable hereunder, then Vintrust may deny the Customer access to the Customer’s wine being stored therein, and withhold all services hereunder, until such indebtedness is fully cured.
Insurances Services Option.
Vintrust offers an Insurance Services Plan, which offers Customer a certain level of protection against loss or damage to Customer’s wine attributable to certain expressly defined causes (stated below) while in Cellarage with Vintrust. The limits of such protection, as expressly described below, are based solely on the aggregate stated value of the Customer’s wine in Cellarage with Vintrust. Such stated value shall be equal to either the aggregate cash value as stated by Customer at the time of initial Cellarage of the wine with Vintrust, or the aggregate cash value as determined by Vintrust at the initial time of Cellarage. Such aggregate cash value, at the sole discretion of Vintrust, may be updated once per calendar year, upon the written request of Customer. In the event that the Customer selects the Insurance Services option, the Customer’s wine shall be protected solely against breakage, theft and fire while cellared with Vintrust. In the event of such loss, Vintrust shall pay Customer the lower of the stated value or the actual cash value of the wine at the time of the loss. Notwithstanding anything contained in this Agreement to the contrary, the Insurance Services option will not provide protection for loss or damage caused by acts of God, seizure or other acts of civil or military authority, insurrection, riot, strike, or enemies of the government; loss or damage resulting from inadequate packaging or wear and tear, deterioration, flooding, insect or rodent infestation, from any cause not originating from within or without the warehouse or from any other cause beyond the reasonable control of Vintrust, or loss or damage resulting from temperature or humidity changes or other causes incident to general storage. The stated value shall be determined and elected solely by the process described above; customer agrees that it is customer’s sole responsibility to ensure that the stated value is current, as in the event of loss of damage Vintrust shall pay the lower of the stated value or the actual cash value at the time of loss or damage.
Fee for Insurance Services Option.
If Customer selects the Insurance Services option, Customer shall pay Vintrust, on an aggregate annual basis, a fee equal to two percent (2.0%) of the aggregate stated value of Customer’s wine in Cellarage with Vintrust as consideration for Vintrust’s provision of such protection. Such fee shall be payable as follows: twenty-five percent (25%) of the two percent (2%) annual Insurance Services fee shall be due and payable upon the initial determination of the stated value and at the beginning of each subsequent calendar quarter. Vintrust disclaims any and all liability for any damage or loss to Customer’s wine that may occur prior to the determination of the stated value or prior to the payment of the initial twenty-five percent (25%) as expressly described above. Furthermore, if Customer shall fail to render any payment for the Insurance Services option as described herein by the date due, then all protection provided by Vintrust for loss or damage as described herein shall cease, and Vintrust shall have no liability whatsoever for any losses or damage suffered by Customer thereafter, except as described within this Agreement. CUSTOMER REPRESENTS AND WARRANTS THAT HE/SHE HAS BEEN ADVISED THAT VINTRUST’S NO INSURANCE OPTION OFFERS CUSTOMER NO PROTECTION AGAINST LOSS OR DAMAGE TO WINE CELLARED WITH VINTRUST EXCEPT AS EXPRESSLY DESCRIBED BELOW.
No Insurance Option / Liability for Loss or Damage.
In the event that the Customer selects the No Insurance Option, then the responsibility of Vintrust for any loss or damage to Customer’s wine (including, but not limited to, direct, indirect, special or consequential loss or damage) while in the custody of Vintrust, including while in transit to and from Vintrust’s cellarage facility, shall be limited to Vintrust’s gross negligence or willful misconduct. Vintrust will not be liable for any damage caused to the Customer’s goods by Customer’s failure or omission to comply with the obligations set forth herein. Notwithstanding anything contained in this Agreement, Vintrust will not be liable for any damage caused by acts of God, seizure or other acts of civil or military authority, insurrection, riot, strike, or enemies of the government; loss or damage resulting from inadequate packaging or wear and tear, deterioration, theft, flooding, sprinkler leakage, fire, insect or rodent infestation, from any cause not originating from within or without the warehouse or from any other cause beyond the reasonable control of Vintrust, or loss or damage resulting from temperature or humidity changes or other causes incident to general storage. VINTRUST IS A BAILEE OF THE GOODS AND IS NOT AN INSURER OF THE GOODS CELLARED WITH IT OR TRANSPORTED BY IT. Vintrust recommends that Customer possess adequate insurance coverage of their wine while in the custody of Vintrust. Any liability of the warehouseman for loss or damage is limited to the occurrences set forth above, and any monetary damages or claims related to Vintrust’s liability are limited as set forth below.
No Insurance Option / Limitation of Damages and Claims.
THE CUSTOMER DECLARES THAT, IN THE EVENT OF LOSS OR DAMAGE IN WHICH VINTRUST IS FOUND LIABLE FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ANY DAMAGES AWARDED PURSUANT TO ANY SUCH ACTION ARE LIMITED TO TEN ($25.00) DOLLARS FOR EACH CASE LOST OR DAMAGED, BUT IN NO EVENT SHALL THE TOTAL OF SUCH DAMAGES EXCEED ONE-THOUSAND ($1,000.00) DOLLARS. In no way shall the foregoing be construed to limit the effect of Vintrust’s disclaimer of liability for any and all losses and damage due to anything other than gross negligence or willful misconduct, as describe above. For purposes hereof, a "case" shall constitute twelve (12) 750 ml bottles or the equivalent of such volume. The Customer further declares that he or she will look to his or her own insurance for any additional damages. Customer hereby waives any right of subrogation against Vintrust, its agents and employees for any loss or damage to the cellared or transported wine, and to notify its carrier, if other than Vintrust, of the terms of such waiver. Vintrust shall not, in any event, be liable for consequential or special damages resulting from the physical loss or damage to any property. As a condition precedent to recovery, all claims must be in writing, supported by a paid freight bill and filed with Vintrust within thirty (30) days of loss or damage of the goods. No claim may be brought by the Customer against Vintrust for loss or damage to the wine covered hereunder unless commenced within one (1) month after the date of service provision by Vintrust and brought consistent with the terms described below. Vintrust shall not be liable for any claim of loss or damage if the Customer has not made full payment of all charges due under this Agreement prior to the time of the filing of such claim.
Indemnity.
Customer hereby indemnifies Vintrust, its officers, directors, employees, agents and assigns against any claims, damages, costs, fines, penalties, liabilities, attorneys’ and other professional fees and disbursements, suffered, incurred by, or asserted against, Vintrust, its officers, directors, employees, agents and assigns, including any amounts incurred or paid in settlement or any judgment of any action, suit, or proceeding brought under any statute, at common law, or otherwise, which arises under or in connection with the performance by Vintrust of services pursuant to this Agreement and any amendment or modification thereto, except to the extent that such liability is direct result of Vintrust’s gross negligence or willful misconduct. The obligations of Customer under this paragraph are hereinafter collectively referred to as "Indemnity Obligations." The Indemnity Obligations shall survive, for a period of five (5) years, any termination of Vintrust’s services under this agreement and any amendment or modification thereto. Customer agrees to promptly tender any payments due to Vintrust, its officers, directors, principals, associates, affiliates, employees, agents, and/or counsel, under or in respect of the Indemnity Obligations, within five (5) business days following written demand by Vintrust, its officers, directors, employees, agents and assigns.
Warranty and Representation of Tax-Paid Status.
Customer represents and warrants that all wine cellared with Vintrust on his/her behalf is in out-of-bond, or “tax-paid” status, and that Customer has obtained any and all necessary permits, if any, to cellar such wine at Vintrust’s cellarage facility. Prior to pickup or delivery of wine to Vintrust’s cellarage facility, Customer shall provide Vintrust with proper bills of lading attesting to such status; in no event, however, shall Vintrust be responsible for the accuracy of such bills of lading.
Dispute Resolution / Waiver of Right to Litigate in Court.
The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy brought by Customer against Vintrust arising out of or relating to this Agreement. Customer may initiate negotiations by providing written notice in letter form to Vintrust, setting forth the subject of the dispute and the relief requested. Vintrust will respond in writing with a statement of its position on, and recommended solution to, the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority will meet at a mutually agreeable time and place within ten days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the dispute. If such dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to negotiate or arbitrate, remains unsettled following such negotiation, the matter shall be determined by arbitration in San Francisco, California, before a sole arbitrator, in accordance with the laws of the State of California. The arbitration shall be administered by Judicial Arbitration and Mediation Services (“JAMS’) pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. The arbitrator shall, in the award, allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party, against the party who did not prevail. Customer hereby agrees, however, that the arbitrator is not empowered to award damages in excess of those damages specified above and hereby expressly waives and foregoes any right to punitive, exemplary or similar damages in arbitration.
Customer hereby agrees to have all disputes, claims or controversies against Vintrust arising out of or relating to this Agreement decided by the negotiation and arbitration procedures described above, and waives any rights it might possess to have those matters litigated in a court or jury trial. Customer acknowledges that if Customer refuses to submit to negotiation and arbitration after agreeing to this provision, Customer may be compelled to arbitrate under federal or state law. Furthermore, Customer acknowledges that none of the foregoing shall limit Vintrust’s rights as described in this Agreement.
Warehouseman’s Lien.
The Warehouseman claims a lien against all wine picked up, delivered or cellared hereunder or at any time hereafter and upon the proceeds of any sale thereof, for cellarage and all other service charges, and for any and all costs and expenses incurred in the maintenance of the wine and its sale pursuant to law. Any goods for which cellarage or other charges remain outstanding ninety (90) days after notice thereof may be sold by Vintrust. The proceeds of such sale shall first be applied to any indebtedness owing to Vintrust, and to any costs and expenses incurred with respect to the goods, the sale, and any efforts to collect such indebtedness. Any excess shall be remitted to the Customer.
Additional Terms.
Except as specified herein or expressly authorized by Customer, Customer’s wine packages or cases shall not be opened by Vintrust, unless Vintrust, in its sole discretion: deems it necessary to determine the ownership nature or condition of the wine; believes the packaging or case(s) containing the Customer’s wine is damaged or otherwise requires replacement, upon which time Vintrust may repackage the wine into substantially similar packaging or cases at the expense of the Customer. If, at any time, Vintrust, in its sole discretion, deems that Customer’s wine is or is likely to become dangerous goods, Vintrust shall have the right to destroy or dispose of Customer’s wine without liability to Vintrust. Customer expressly acknowledges that neither Vintrust, nor any other entity contracted with by Vintrust to provide pickup or delivery services, is a common carrier and may refuse to transport Customer’s wine in its sole discretion.
Notice.
Any notice given under this Agreement or pursuant to law must be in writing and will be sufficient if personally delivered or sent by regular, certified or registered mail, return receipt requested, to the address set forth below, or the last address provided by Vintrust or Customer in a notice. Notice deposited in the mail in the manner hereinabove described shall be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For purposes of Notice, the addresses of Vintrust shall be: 3620 Buchanan Street, San Francisco, California 94123.
It is agreed that the address of the Customer is as set forth during the registration process, and shall be relied upon by the warehouseman as the address of the Customer until notice of change of address is given in writing to the warehouseman and acknowledged in writing.
Miscellaneous.
This Agreement represents the entire and integrated Agreement between the parties herein, and supercedes all prior negotiations, representations or Agreements, either written or oral. Any waiver of a right or duty afforded under this Agreement shall not be effective unless such waiver shall be in writing and signed by the party claimed to have given, consented to or suffered the waiver. This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of California. In the event that any court of competent jurisdiction determines that any provision of this Agreement is unlawful or unenforceable, each and all remaining provisions of this Agreement shall remain in full force and effect. This Agreement will bind and benefit Vintrust and Customer, and their respective heirs, executors, administrators, successors, and permitted assigns. This Agreement will not, however, bind Vintrust or any subsequent owner after any transfer or assignment of its interest in the cellarage facility.