4201 Santa Rosa Avenue, Santa Rosa, California 95407 | (707) 595-3612
www.oenovaults.com
1. PARTIES AND DATE. This Agreement of Terms and Conditions
(“Agreement”) is entered into in duplicate, as of the date set forth in the Sign-
Up Information by and between Generation Second Investors LLC dba Oeno
Vaults (“OV”), 4201 Santa Rosa Avenue, Santa Rosa, California 95407 (the
“Facility”), phone number (707) 595-3612, e-mail address for notice:
info@oenovaults.com, and the individual(s) named in the Sign-Up
Information (“Member”) for the purpose of engaging the services of OV, which
services include the storage of wine, beer, olive oil, other high-valued liquids
or other items that may, at OV’s sole discretion, be permitted to be stored by
Customer at OV’s Facility (each, a “Product,” and collectively, the “Products”)
and the pick-up and delivery of such Products in accordance with Section 5,
below (collectively, the “Services”). By entering into this Agreement,
Customer represents that Customer is of legal drinking age.
2. TERM. The term of this Agreement shall commence as of the date set
forth in the Sign-Up Information (“Anniversary Date”) and shall continue on a
month-to-month basis, unless sooner terminated by Customer or OV
pursuant to Section 5 below. In the event Customer enters into an annual
contract, the term shall commence as of the Anniversary Date and shall
continue for a period of twelve (12) months thereafter. After the end of the
initial twelve (12) month period, the annual contract shall renew for
consecutive twelve (12) month periods at the prevailing rental rate, unless
terminated by Customer or OV pursuant to Section 4 below.
3. MEMBERSHIP FEE, STORAGE FEES AND LATE FEES.
3.1. Membership Fee. The Membership Fee for the Services provided
shall be calculated at a base rate of Ninety Dollars per month ($90.00/Month)
The Membership Fee shall be charged in advance on the Member’s
Anniversary Date, or first of each calendar month, as defined in Section 2
above.
Member shall pay OV by automatic credit card debit only (unless an
alternate payment arrangement has been approved in advance by OV) the
amount(s) set forth in the Sign-Up Information, or as may be agreed to in
writing between Member and OV. Member agrees to keep a valid credit card
on file with OV at all times, and failure to do so constitutes a material breach
of this Agreement. The (Membership Fee may be changed at any time by OV
giving thirty (30) days written notice to Member at the address or e-mail set
forth in the Sign-Up Information.
3.2 Storage Fee. Each bottle or pre-approved Product stored by Member at
the OV Facility shall be subject to the rate of $0.45/product/month.
The daily storage fee will be calculated, and accrue, by multiplying the tiered
pricing rate per product divided by a 30-day calendar month. The Member
will be charged the total Storage Fee in arrears on the Member’s Anniversary
Date, or beginning of the month, as defined in Section 2 above. The Storage
Fee may be changed at any time by OV giving thirty (30) days written notice
to Member at the address or e-mail set forth in the Sign Up Information.
3.3. OV’s Remedies for Late Payment of Service Fee.
3.3.1. Courtesy Notices. If on the
Anniversary Date of any month
during the term of this Agreement Member’s credit card payment is
dishonored, or if any amounts are due and owing on Member’s account,
Member’s account shall be deemed overdue, and all of OV’s obligations to
fulfill Member’s shipment pick-up, or delivery requests will be terminated.
Upon receiving notification that Member’s credit card payment is dishonored,
OV shall send to Member a courtesy e-mail to the e-mail address on file
providing a link for Member to update Member’s online credit card information
and to submit payment (“First Attempt”). Ten (10) days after the First
Attempt, OV will attempt to charge Member’s credit card on file a second time
(“Second Attempt”). If Member does not take action to update Member’s
credit card information, and/or the Second Attempt is dishonored, OV will
send Member a second courtesy e-mail informing Member that the Second
Attempt was dishonored, and that Member may be subject to an
administration fee in the amount of $25.00. Thirty (30) days after the First
Attempt, OV will attempt to charge Member’s credit card on file a third time
(“Third Attempt”). Should Member fail to update Member’s credit card
information, and/or the Third Attempt is dishonored, OV will send a third
courtesy e-mail informing Member that a $25.00 administration fee has been
charged to Member’s Account, that Member’s right to access the Oeno
Vault’s Website (defined below) will be terminated if Member’s account is not
paid in full within thirty (30) days of the date of the Third Attempt, and
requesting that Member update Member’s online credit card information and
to submit payment.
3.3.2. Notice of Abandonment. Sixty (60) days after the First
Attempt, OV will attempt to charge Member’s credit card a fourth and final
time (“Fourth Attempt”). If the Fourth Attempt is dishonored, OV shall send to
Member via certified mail a Notice of Abandonment of Member’s Vault Space
(“Notice of Abandonment”). The Notice of Abandonment shall inform
Member that: (a) Member’s account has been overdue for a period of sixty
(60) days, (b) Member’s right to access the Oeno Vault’s Website and/or
Mobile App (defined below) is terminated unless and until Member pays in
full all amounts due and owing on Member’s account, and (c) all property
remaining in Member’s Vault Space (defined below) thirty (30) days after the
date of the Notice of Abandonment shall become the sole and exclusive
property of OV.
3.3.3. Abandonment of Member’s Property. Member agrees that
any Products of Member remaining at OV’s Facility thirty (30) days from the
date of the Notice of Abandonment is evidence of Member’s intent to
relinquish the property without the intention of reclaiming possession
(“Member’s Abandonment”). Should Member fail to respond to the Notice of
Abandonment, or if Member fails to take action to reclaim possession of
Member’s personal property within thirty (30) days from the date of the Notice
of Abandonment, all of Member’s Products remaining at OV’s Facility shall
become the sole property of OV, and shall be considered adequate
consideration for all amounts due and owing on Member’s account as
provided in Section 3.2.4., below.
3.3.4. LIQUIDATED DAMAGES. MEMBER AND
OV EACH AGREE THAT IN THE EVENT OF A
MATERIAL DEFAULT OR BREACH HEREUNDER BY
MEMBER AND/OR IN THE CASE MEMBER FAILS TO
PAY THE SERVICE FEE PURSUANT TO THIS
AGREEMENT, THE DAMAGES TO OV WOULD BE
EXTREMELY DIFFICULT AND IMPRACTICABLE TO
ASCERTAIN. THEREFORE, IN THE EVENT OF A
MATERIAL DEFAULT OR BREACH BY MEMBER, THE
CONTENTS OF MEMBER’S VAULT (THE “VAULT
CONTENTS”) SHALL SERVE AS LIQUIDATED
DAMAGES, WHICH LIQUIDATED DAMAGES SHALL
SERVE AS A REASONABLE ESTIMATE OF THE
DAMAGES TO OV, INCLUDING COSTS OF
NEGOTIATING AND DRAFTING THIS AGREEMENT,
COSTS OF STORING THE VAULT SPACE CONTENTS,
UNREIMBURSED PICK-UP AND DELIVERY COSTS
INCURRED BY OV AT MEMBER’S DIRECTION AND
OTHER COSTS INCURRED IN CONNECTION
HEREWITH. MEMBER’S ABANDONMENT OF THE
VAULT SPACE CONTENTS AND THE RETENTION OF
VAULT SPACE CONTENTS BY OV SHALL BE OV’S
SOLE AND EXCLUSIVE REMEDY AGAINST MEMBER
FOR A MATERIAL BREACH OR DEFAULT BY
CUSTOMER HEREUNDER, AND OV WAIVES ANY
AND ALL RIGHT TO SEEK OTHER REMEDIES
AGAINST MEMBER, INCLUDING WITHOUT
LIMITATION, SPECIFIC PERFORMANCE AND
PAYMENT OF PAST DUE SERVICE FEES. THE
RETENTION OF VAULT SPACE CONTENTS AS
LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING
OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR
3369, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND
1677. OV HEREBY WAIVES THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 3389. UPON ANY
SUCH BREACH OR DEFAULT BY MEMBER
HEREUNDER, THIS AGREEMENT SHALL BE
TERMINATED AND NEITHER PARTY SHALL HAVE
ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EACH TO THE OTHER, EXCEPT FOR
THE RIGHT OF SELLER TO RETAIN SUCH
LIQUIDATED DAMAGES.
4. TERMINATION. Notwithstanding the termination provisions set forth in
Section 3.3, above, either party may terminate this Agreement by giving the
non-terminating party thirty (30) days written notice. Any Membership Fee
paid in advance of the termination shall be forfeited. No Membership Fee
refunds shall be given. Should OV terminate this Agreement with inventory
remaining in Member’s Vault Space, OV shall be responsible for all costs
associated with termination, including all packing and shipping of Member’s
Products to Member. Should Member terminate this Agreement, Member
shall be responsible for all costs associated with packaging and shipping the
Member’s Products to Member. Within forty-eight (48) hours of termination
by either party, Member shall provide OV with a destination address to ship
the contents of Member’s Vault Space. If Member fails to provide a
destination address with forty-eight (48) hours, OV shall use the address set
forth in the Sign-Up Information. Regardless of which party terminates this
Agreement, OV shall have sole discretion in selecting the method of
shipment.
5. OV’S SERVICES.
5.1. Member’s Vault Space. As part of the Services provided by OV
hereunder, OV agrees to let, and Member agrees to rent, space in the Facility
described as a portion of a refrigerated Product vault (“Vault Space”), on the
terms and conditions set forth in this Agreement. Notwithstanding the
foregoing, for purposes of Sections 3 and 4 above, “Vault Space” shall be
read to include any Products stored by Member at the OV Facility..
5.2. Security of Vault. OV has equipped Member’s Vault Space with a
triggered alarm system, and has equipped the Facility with surveillance
cameras and motion sensors that cover entry and exit points as well as major
corridors.
5.3. Access to Vault Space. Member shall not have physical access to
Member’s Vault Space.
5.4. Refrigeration of Space. OV represents that Member’s Vault Space
is located within a temperature and humidity controlled environment operated
for the sole purpose of storing the Products. OV has taken reasonable
measures to ensure that the Facility remains at a constant temperature,
including the installation of temperature and humidity monitoring devices and
a backup diesel generator.
5.5. Oeno Vaults Website & Mobile App. Member shall be provided
online access to the “Member” section of www.oenovaults.com (“Oeno Vaults
Website”) and may download OV’s mobile application (“Mobile App”) from
designated application stores for either iPhone or Android operating systems.
The Oeno Vaults Website and Mobile App will allow Member to view the
inventory of Member’s Vault Space, to schedule pick-up by OV of Member’s
Products within Napa and Sonoma Counties, to schedule an in-person pick-
up request at the Facility and/or to facilitate the shipment of Member’s
Products from the Facility to Member’s designated shipping destination.
Member shall access the Oeno Vaults Website or Mobile App using
Member’s unique username and password.
5.5.1. Online Inventory Access. Member shall have the ability to
view, using the Oeno Vaults Website or Mobile App, the inventory of
Member’s Vault Space using OV’s inventory tracking system twenty-four (24)
hours a day and seven (7) days a week, subject at all times to routine website
or mobile application maintenance and internet service interruption.
5.5.2. Online Management of Member’s Inventory. Member shall
be solely responsible for arranging: (a) the acceptance of Products by OV at
the Facility, (b) off-site pick-up of Member’s Products by OV, (c) Member’s
pick-up of Products in-person at the Facility, and (d) for the shipment and
delivery of Products to Member’s designated shipping destination. OV
reserves the right to provide generalized, nonspecific information as to
Member’s overall inventory, and inventory history, located at the Facility to
third parties.
5.5.3. Verification. OV shall require verification of Member’s
password for all orders placed online and via telephone. Should Member
appoint another person(s) or organization(s) to make arrangements on
Member’s behalf, Member shall be responsible for the conduct of such
person(s) or organization(s). Member agrees that possession of Member’s
password by person(s) or organization(s) making arrangements on
Member’s behalf constitutes full authority to give instruction for delivery of
Products to or from Member’s Vault Space.
5.6. On-Site Acceptance of Member’s Products. OV will accept
deliveries of Member’s Products at the Facility.
5.7. Off-Site Pick-Up of Member’s Products. OV agrees to pick-up
Products to be stored at the Facility on behalf of Member at wineries or other
facilities within Sonoma and Napa Counties only. Member must arrange such
off-site pick-up request using the Oeno Vaults Website, Mobile App or via
telephone no less than seven (7) days in advance of the requested off-site
pick-up. OV shall use climate-controlled transportation when transporting
Member’s Products from the pick-up location to the Facility.
5.8. In-Person Pick-Up of Products. Member may arrange to pick-up
Products from the Facility. Member must schedule all in-person pick-ups on
the Oeno Vaults Website, Mobile App at least seventy-two (72) hours in
advance of Member’s arrival.
5.9. Delivery of Products.
5.9.1. Scheduling Shipment. OV, at the direction of Member,
agrees to facilitate the shipment of Member’s Products to such locations
using such parcel carriers as directed by Member or Member’s authorized
representative (the “Shipment Services”). Member shall submit a shipping
request, designating what inventory from Member’s Vault Space is to be
shipped and to what location, no less than seventy-two (72) hours in advance
of Member’s requested shipment date. In order to avoid delays in shipping
Member’s Products, Member shall also provide to OV sufficient information
to allow OV to facilitate Member’s shipment with the desired parcel carrier,
including the parcel carrier’s name and contact information, Member’s
account number and any negotiated rate codes. OV shall use its best
reasonable effort to facilitate Member’s shipment by the date specified by the
shipping request, however, failure to do so shall not constitute a breach by
OV of this Agreement. Member may not order more than 10-packages per
calendar month (Order Allowance). Any shipments made in excess of
Member’s Order Allowance may be subject to an additional handling fee of
$25 dollars per additional boxes ordered. In leu of Order Allowance fee, a
Palletization fee of $250/pallet will be charged for larger shipments.
5.9.2. Role of Member. Member warrants and agrees that
Member will be the shipper of Member’s Products for all purposes. Member
agrees and accepts that OV’s role in the shipment of Products shall be limited
to preparing Member’s Products for shipment. Member agrees and accepts
that OV shall incur no liability as a result of Member shipping Member’s
Products to third parties, and Member further agrees to indemnify, defend
and hold OV harmless from and against any damages incurred by OV as a
result of OV facilitating the shipment of such Products on Member’s behalf.
Member warrants and agrees that Member is familiar with the laws governing
the shipment of alcohol and other Products that may be delivered to or
shipped from Member’s Vault Space.
5.9.3. Carrier Contract. By clicking “Accept,” Member, as the
shipper of all Member’s Products, represents to OV that Member fully
understands and agrees to comply with all applicable shipping-related terms
and conditions of the shipment carrier, including those terms and conditions
relating to intrastate and interstate shipment of alcoholic beverages. Member
acknowledges and agrees that it is Member’s responsibility as the shipper to
coordinate with the shipping company regarding the specific terms and
conditions applicable to Member’s shipment of the Products.
5.9.4. Costs of Shipping and Handling. Except as otherwise
provided in Section 3 above, Member agrees and accepts that all costs
incurred by OV associated with picking, packaging and shipping Member’s
Products shall be billed to Member’s credit card on file. Member also
acknowledges that OV reserves the right to modify its shipping rates at
anytime without notice to Member.
5.9.5. Delivery of Products. OV at the direction of Member may
deliver Member’s Products using OV’s refrigerated vehicle, or other vehicle
as OV deems appropriate, to an address specified by Member so long as the
address is within the designated delivery area as defined by OV, which may
change from time-to-time. A delivery fee will be charged to Member at a rate
of $50/hour for travel time to and from the OV facility to the designated
delivery address.
5.10. No Warranties. OV disclaims any/all implied warranties of
suitability or fitness for a particular use or purpose. Member agrees to use
Vault Space only for the storage of Products that are lien-free and wholly
owned by Member. Member’s property is stored under the supervision and
control of Member. Except as otherwise set forth herein, OV exercises
neither care, custody, nor control over Member’s stored property.
5.11. Member Waiver of Emotional Attachment. Member shall not store
any collectibles, heirlooms, jewelry, works of art or any property of any type
or kind that does not conform to the definition of “Products” in Section 1
above. Member waives any claim for emotional or sentimental attachment
to the Products stored in Member’s Vault Space. Member specifically agrees
that, with the exception of property prohibited by this Agreement, OV is not
concerned with the kind, quality or value of the goods stored.
6. OV’S AUTHORITY.
6.1. Authority to Process Member’s Product Orders. Member grants
OV full authority to accept and open packages addressed to Member for the
purpose of inventorying the contents of Member’s packages and placing the
Products contained in such packages in OV’s custom packaging containers
for the purpose of storing the Products in Member’s Vault Space.
6.2. Authority to Enter Member’s Vault Space. Member irrevocably
grants to OV for the term of this Agreement full authority to enter Member’s
Vault Space for the purpose of fulfilling a request described in Section 5, for
conducting an internal audit, to consolidate inventory, or any other
reasonable safety or operational purpose.
6.3. Limitations on OV’s Authority. OV’s employees are forbidden from
providing any service on behalf of OV that are outside the scope of the
Services expressly outlined in Section 5 of this Agreement. Should
employees of OV provide Services outside the scope hereof at Member’s
request, such employee(s) shall be deemed to be the agent of Member
regardless of whether payment for such service is made or not, and Member
agrees to hold OV harmless from all liability in connection with or arising,
either directly or indirectly, from such Services performed by one or more
employees of OV.
7. INSURANCE. MEMBER ACKNOWLEDGES THAT OV CARRIES
LIMITED INSURANCE PROVIDING COVERAGE AGAINST THE LOSS OF
CONTENTS STORED AT OV’S FACILITY. MEMBER ACKNOWLEDGES
THAT THE INSURANCE COVERAGE CARRIED BY OV EXTENDS ONLY
TO SUCH LOSS TO MEMBER’S PRODUCTS THAT (A) WITHIN OV’S
EXCLUSIVE CONTROL AT THE FACILITY AT THE TIME THE DAMAGE
TO SUCH PRODUCTS OCCURS AND (B) THE SOLE RESULT OF OV’S
NEGLIGENCE OR WILLFUL MISCONDUCT. NOTWITHSTANDING THE
FOREGOING, MEMBER AGREES TO SELF-INSURE (I.E. NOT TO
CARRY INSURANCE) OR MAINTAIN, AT MEMBER’S EXPENSE, A
POLICY OF FIRE AND EXTENDED COVERAGE INSURANCE THROUGH
A LICENSED INSURANCE CARRIER WITH LIABILITY, THEFT,
VANDALISM, AND MALICIOUS MISCHIEF ENDORSEMENTS FOR THE
FULL VALUE OF MEMBER’S PRODUCTS STORED AT THE FACILITY.
MEMBER SHALL NAME OV AS ADDITIONAL INSURED FOR EACH
INSURANCE POLICY MEMBER MAINTAINS. THIS POLICY OF
INSURANCE (OR SELF-INSURANCE) IS FOR THE BENEFIT OF BOTH
MEMBER AND OV. MEMBER EXPRESSLY AGREES THAT THE
CARRIER OF SUCH INSURANCE SHALL NOT BE SUBROGATED TO
ANY CLAIM OF MEMBER AGAINST OV, OR OV’S AGENTS OR
EMPLOYEES. MEMBER FURTHER AGREES TO INDEMNIFY AND HOLD
OV HARMLESS FROM ANY EXPENSE, COST, OR DAMAGE INCURRED
BY REASON OF ANY CLAIM OR ACTION BASED IN WHOLE OR IN
PART UPON SUCH SUBROGATION. ALL SUCH INSURANCE
REQUIRED HEREUNDER SHALL ALSO CONTAIN CROSS-LIABILITY
ENDORSEMENTS, BE PRIMARY AND NON-CONTRIBUTING WITH
RESPECT TO ANY POLICIES CARRIED BY OV AND SHALL STATE
THAT ANY COVERAGE CARRIED BY OV SHALL BE EXCESS
INSURANCE.
8. RELEASE OF OV’S LIABILITY. MEMBER UNDERSTANDS AND
ACKNOWLEDGES THAT OV HAS TAKEN REASONABLE
PRECAUTIONS CONSISTENT WITH INDUSTRY STANDARDS TO
PROVIDE CONSTANT INTERNAL TEMPERATURE AND HUMIDITY
CONTROL IN MEMBER’S VAULT SPACE, BUT OV DOES NOT
WARRANT OR GUARANTEE A PARTICULAR TEMPERATURE OR
HUMIDITY LEVEL WITHIN MEMBER’S VAULT SPACE. BECAUSE
MEMBER IS SOLELY IN CONTROL OF THE PRODUCTS PLACED IN
MEMBER’S VAULT SPACE, OV CANNOT WARRANT OR GUARANTEE
THAT (A) MEMBER’S VAULT SPACE IS SUITABLE FOR ANY
PRODUCTS MEMBER ELECTS TO STORE IN MEMBER’S VAULT
SPACE, (B) STORING THE PRODUCTS IN THE VAULT SPACE WILL
PRESERVE THE TASTE OR QUALITY OF SUCH PRODUCTS, OR (C)
THE ITEMS DELIVERED TO OV PURSUANT TO SECTIONS 5.7 OR 5.8
HEREOF CONFORM TO MEMBER’S ORDER OF SUCH PRODUCTS OR
ARE IN A CONDITION ACCEPTABLE TO MEMBER. IN THE EVENT THAT
THE TEMPERATURE AND/OR HUMIDITY CONTROL MECHANISMS
FAIL, OV SHALL CONTACT THE APPROPRIATE REPAIR PERSONNEL
WITHIN ONE (1) HOUR OF LEARNING OF SUCH FAILURE AND SHALL
TIMELY SCHEDULE ALL NECESSARY REPAIRS SO AS TO MINIMIZE
THE IMPACT OF SUCH FAILURE. PROVIDED THAT OV TAKES THE
STEPS SET FORTH IN THIS SECTION 8, OV SHALL HAVE NO LIABILITY
FOR DAMAGE CAUSED TO MEMBER’S PRODUCTS AS A RESULT OF
THE FAILURE OF THE TEMPERATURE AND/OR HUMIDITY CONTROL
MECHANISMS. AS FURTHER CONSIDERATION FOR THE USE AND
OCCUPANCY OF THE VAULT SPACE, MEMBER AGREES THAT OV, ITS
AGENTS, EMPLOYEES, AND ASSIGNS SHALL NOT BE LIABLE TO
MEMBER, HIS/HER AGENTS, GUESTS, LICENSEES, OR INVITEES FOR
ANY LOSS OR DAMAGE, INJURY, OR DEATH CAUSED TO THEM OR
TO THEIR PROPERTY, AS A RESULT OF THE USE AND OCCUPANCY
OF THE VAULT SPACE, UNLESS SUCH LOSS, DAMAGE OR INJURY
ARISES FROM AN EVENT OR CIRCUMSTANCE WITHIN OV’S
EXCLUSIVE CONTROL AND IS CAUSED SOLELY BY OV, ITS AGENTS,
EMPLOYEES AND/OR ASSIGNS. MEMBER ACKNOWLEDGES THAT,
DESPITE THE PRECAUTIONS UNDERTAKEN BY OV IN THE STORAGE
OF MEMBER’S PRODUCTS, OV CANNOT SECURE AGAINST HAZARDS
BEYOND ITS SOLE CONTROL, INCLUDING DAMAGE CAUSED BY
THIRD-PARTY PARCEL CARRIERS OR MOLD, MILDEW OR AIRBORNE
CONTAMINANTS. MEMBER FURTHER ACKNOWLEDGES THAT OV
CANNOT INSURE AGAINST ACTS OF GOD, INCLUDING BUT NOT
LIMITED TO, THE ELEMENTS OF WEATHER OR NATURAL DISASTER,
INCLUDING EARTHQUAKES, TORNADOES, OR VIOLENT ACTS,
INCLUDING TERRORIST ACTS, NUCLEAR RELEASE, OR EXPLOSIONS
OF ANY OTHER NATURE. IT IS AGREED BY MEMBER THAT THIS
RELEASE OF OV’S LIABILITY IS A BARGAINED FOR CONDITION OF
THE SERVICE FEE SET FORTH HEREIN, AND THAT WERE OV NOT
RELEASED FROM LIABILITY AS SET FORTH HEREIN, A MUCH HIGHER
SERVICE FEE WOULD NEED TO BE AGREED UPON.
9. INDEMNIFICATION. Member will indemnify, hold harmless, and defend
OV from all claims, demands, actions, or causes of action (including
attorney’s fees and all costs whatsoever) that are hereafter made or brought
in part or wholly as a result of or arising out of Member’s use of the Vault
Space, including all such claims relating to Member’s shipping of Products in
accordance with Section 5.10. This indemnity specifically includes, but is not
limited to, all liabilities released by Member in this Section 9.
10. NOTICES--CHANGE OF ADDRESS. All notices required or permitted
by law, or by this Agreement, shall be sent in writing (i) to Member at
Member’s physical address and/or e-mail address set forth in the Sign-Up
Information, and (ii) to OV at the physical address and e-mail set forth in
Section 1.
11. CHANGE IN AGREEMENT’S TERMS. With the exception of the
Membership Fee charged to Members who have entered into this Agreement
for a term for twelve (12) months, any of the terms of this Agreement may be
changed by OV by thirty (30) days written notice to Member. Any change in
the terms of this Agreement shall not affect the validity or enforceability of
this Agreement.
12. ASSIGNMENT. Member shall not sublet or assign the Vault Space or
store property owned by others without the prior written consent of OV.
13. LIMITATIONS ON ACTIONS TO BRING SUIT.
13.1. Mediation of Disputes. Any dispute arising out of this Agreement
(“Dispute”) shall be submitted to mediation by a mediator mutually agreed
upon by the parties. The mediation shall consist of no less than two full days
of mediation. In mediating the Dispute, the parties agree to use good faith,
due diligence and sincere effort to resolve the Dispute. In mediating the
Dispute, each party shall bear their own attorneys’ fees and costs. If the
parties are unable to resolve the Dispute after two full days of mediation,
either party may commence litigation. Compliance with this Section shall
constitute a condition precedent to the filing of any action against OV.
13.2. Limitation on Action. Any claims, suits or defenses to any action
brought by Member which may arise out of this Agreement or out of the
parties performances hereunder, or for the loss or damage to stored property
shall be barred unless commenced by Member within one year after the date
of the acts, omissions or alleged negligence giving rise to such claim, suit or
defenses.
14. ATTORNEY’S FEES. In the event that a Dispute results in litigation, the
prevailing party shall be entitled to recover from the other party all reasonable
fees, costs and expenses of attorneys incurred by the prevailing party.
15. GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California as applied to agreements made between residents of California for
performance entirely within California. The federal and state courts residing
in Sonoma County, California shall have jurisdiction over any claim brought
under this Agreement, and the parties hereby consent to the personal
jurisdiction of such courts.
ADDENDUM A
Shipment Services Addendum
In the event Member does not store any Products at the Facility and instead uses only OV’s Shipment
Services, the following provisions of the Agreement shall govern the relationship between Member and OV:
• Section 5.5 (Oeno Vaults Website & Mobile App)
• Section 5.6 (On-Site Acceptance of Member’s Products)
• Section 5.7 (Off-Site Pick-Up of Member’s Products)
• Section 5.9 (Delivery of Products)
• Section 6.3 (Limitations on OV’s Authority)
• Section 7 (Insurance)
• Section 8 (Release of OV’s Liability)
• Section 9 (Indemnification)
• Section 10 (Notices – Change of Address)
• Section 11 (Change in Agreement’s Terms)
• Section 12 (Assignment)
• Section 13 (Limitations on Actions to Bring Suit)
• Section 14 (Attorney’s Fees)
• Section 15 (Governing Law and Jurisdiction)
In addition to the foregoing, Member expressly acknowledges and agrees that OV may use personal
information Member provides for purposes of corresponding with Member regarding other of OV’s Services. OV
will not, however, sell Member’s personal information to third parties for any reason, nor will OV disclose
Member’s personal information to unaffiliated third parties who wish to offer their own products and services,
unless Member specifically requests or authorizes OV to do so.
