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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
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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 $150/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
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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.