VinGlobal Terms & Conditions

TERMS AND CONDITIONS FOR FULFILLMENT AND REPORTING SERVICES

BY REQUESTING ANY SERVICES TO BE PERFORMED BY VIN-GLOBAL, LLC (“VG” OR “COMPANY”), CLICKING TO ACCEPT, OR AGREEING TO THESE TERMS AND CONDITIONS, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS IN THE VERSION PUBLISHED AT THE TIME OF COMPANY’S PERFORMANCE OF SERVICES.  IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, THEN YOU MUST NOT REQUEST PERFORMANCE OF SERVICES.  COMPANY MAY REVISE AND UPDATE THESE TERMS AND CONDITIONS FROM TIME TO TIME IN ITS SOLE DISCRETION.  ALL CHANGES ARE EFFECTIVE IMMEDIATELY WHEN POSTED AND APPLY TO THE SERVICES PROVIDED TO YOU THEREAFTER.

These terms and conditions, together with any and all schedules, addenda, other attachments, or documents they expressly incorporate by reference (collectively, these “Terms and Conditions”) govern your relationship as a customer with Company and any Services provided to You by Company.  Company and You may be individually referred to as a “Party” or collectively as the “Parties” in these Terms and Conditions.  These Terms and Conditions supersede all previous terms and conditions and any prior statements concerning rates, payment, and other terms concerning Company’s performance of Services for You.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.  THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION AGREEMENT, WHICH REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR COURT TRIALS.

1. Services.  Company’s performance and Customer’s receipt of the Services (as defined in the Pricing Agreement) will be subject to the Pricing Agreement for Fulfillment and Reporting Services (the “Pricing Agreement”), if any, agreed upon by the Parties, these Terms and Conditions, its Schedules and Addenda (which Schedules or Addenda, unless expressly stated therein, will not limit any other obligation of Customer or Company under these Terms and Conditions), all of which are hereby incorporated. Customer additionally accepts the terms of any bill of lading, waybill, warehouse receipt, tariff, circular, terms of service, power of attorney, or other transactional documents issued to it or its agents in performance of the Services. The order of priority in the event of conflict will be: (a) the terms of the Pricing Agreement, including all of its Schedules and Addenda; (b) the terms of these Terms and Conditions; and then (c) any transactional documents issued to and accepted by Customer in writing. The Services may be amended by Company from time to time upon notice to Customer in writing.  All capitalized terms not otherwise defined in these Terms and Conditions shall have the meaning prescribed in the Pricing Agreement.
2. Customer Obligations.

• Customer shall provide to VG a copy of their DTC Shipping Permit for all states to which Customer ships wine without the use of the Services set forth in the Pricing Agreement.
• Customer shall provide VG all data, including product retail price, bottle size, product type, quantity of bottles, recipient address, etc. to ensure accurate tax reporting and to avoid penalties from the Customer shall be responsible for all penalties incurred.
• Customer shall ensure that they are accurately remitting to VG the appropriate tax rates in line with the sample tax rates in the Pricing Agreement which are subject to change as outlined in the Pricing Agreement.
• Customer shall comply with the volume/gallonage limits imposed by each individual State. Customer shall be liable to reimburse Vin-Global for any and all fines imposed by any State related to any violations of State law by Customer.
• Customer is in and will remain in compliance with all applicable law and will obtain and maintain all permits, licenses, certifications, and authorizations that are necessary or appropriate for it to perform under the Pricing Agreement, including, without limitation, Customer obtaining and maintaining all rights, title, and interests necessary for Customer and Company (as necessary) to use third party intellectual property in connection with each Party’s obligations under the Pricing Agreement.

3. Indemnification. Customer shall defend, indemnify, and hold harmless Company, its subsidiaries and affiliates, and its and their respective officers, directors, shareholders, employees, agents, shippers, successors, and assigns from and against any and all actual, potential, threatened, or pending claims, demands, actions, causes of action, liabilities, judgments, fines, penalties, orders, decrees, awards, costs, expenses, including attorneys’ fees, settlements, and claims arising out of or relating to: (a) loss or damage to property, or personal injury, including death, which may be sustained by the parties, their employees, or third parties, arising out of or in connection with Customer’s goods or Customer’s performance or failure to perform its obligations in accordance with these Terms; (b) breach of any representations, warranties, or covenants in these Terms or the Pricing Agreement; (c) violation of any applicable law or regulation by Customer, its personnel, agents, or contractors; or (d) the negligence or intentional misconduct of Customer, its personnel, agents, or contractors.

4. Confidential Information.

• Each Party acknowledges that its performance under these Terms and Conditions will involve the sharing of valuable trade secrets or proprietary or confidential information (“Confidential Information”) with the other Party. Title to Confidential Information shall remain with the disclosing Party and neither Party shall divulge, transmit, sell, or otherwise disclose or cause to be disclosed any Confidential Information of the other Party, including without limitation the other Party’s business contacts, customer lists, prices, payment methods, promotional tools, inventory management techniques, suppliers, technology, know-how, packaging, and marketing information.  Each Party agrees that it will not copy, modify or reproduce the other Party’s Confidential Information in any way, except as provided herein. The Parties also undertake not to make use of any third party to circumvent this clause.

• VG’s Services are Confidential. Customer understands and agrees that Customer shall NOT make any reference to VG to Customer’s clients and Customer shall not use VG’s name in any marketing efforts, advertising, web pages, social media, or the like.
• Confidentiality Period. As used herein, the term “Confidentiality Period” shall mean the period which is two (2) years from the termination of the business relationship between Company and Customer.
• Each Party acknowledges that serious harm and damage may occur as a result of release of Confidential Information by the other Party and, accordingly, each Party agrees that money damages would not be a sufficient remedy for any breach of the Confidentiality Agreement set forth herein. In the event of the release of any Confidential Information by a Party or breach of this Section, the aggrieved Party shall be entitled to equitable relief, including injunctive and specific performance in addition to all other remedies available at law or in equity. Each Party hereby consents to jurisdiction in the State of California for any litigation brought pursuant to the Confidentiality Agreement set forth in this Section, and that this Agreement shall be governed by the laws of California.  Any action brought under this Agreement shall be venued in a Court within Napa County, California.  All expenses of both Parties, including without limitation reasonable attorneys’ fees and disbursements, shall be paid by the losing Party in any suit brought to enforce the obligations of any Party (or by the losing Party pro rata in conformance with the extent of loss, in the event of a partial judgment) as set forth in this Section.  Such reimbursed expenses shall be immediately due and payable, regardless of the right to further appeal.

5. Non-Solicitation of Employees and Customers.

• Non-Solicitation.

• Beginning upon the execution and delivery of this Agreement, and continuing for a period of six (6) months after the expiration or termination of the Pricing Agreement, the Parties agree to refrain from making any solicitations or offers of any kind, directly or indirectly, to: (1) any then-current employee of the other Party to join the soliciting Party as an employee, consultant, or advisor in any capacity whatsoever; or to (2) any then-current customer of the other Party to discontinue working with the other Party and to become a customer of the soliciting Party.

• In the event of a breach of this non-solicitation provision, including a solicitation to an employee or customer about whom the Parties were unable to reach an agreement as to status as an employee or customer, the aggrieved Party is entitled to seek immediate injunctive relief in any court of competent jurisdiction within the County of Napa, State of California and to initiate dispute resolution proceedings in accordance with these Terms and Conditions.

6. Waiver of Certain Damages. EXCEPT AS PROVIDED IN THIS SECTION, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS, INSURERS AND ASSIGNS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER IN CONNECTION WITH THE SERVICES FOR ANY REASON IN EXCESS OF THE LESSER OF TEN THOUSAND DOLLARS ($10,000.00) OR THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE PRICING AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.

7. Disclaimer. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, STATUTORY WARRANTIES, OR OTHERWISE, AS TO ANY MATTER WHATSOEVER AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF MERCHANTABILITY, DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY, CAPACITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS ARE EXPRESSLY EXCLUDED AND DISCLAIMED.  EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES NOT SPECIFICALLY INCLUDED IN THIS SECTION, INCLUDING ANY SALES PRESENTATIONS, DEMOS, REPLIES TO RFPS, MANAGEMENT PRESENTATIONS, OR OTHER COMMUNICATIONS (COLLECTIVELY, “ADDITIONAL INFORMATION”), AND WILL NOT ASSERT, AND WILL CAUSE ITS AFFILIATES AND PERSONNEL NOT TO ASSERT, ANY CLAIM AGAINST THE OTHER PARTY WITH RESPECT TO THEIR RELIANCE ON ANY ADDITIONAL INFORMATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY MAKES NO REPRESENTATION OR WARRANTY PERTAINING TO COMPLIANCE WITH FEDERAL, STATE, OR LOCAL ALCOHOL BEVERAGE LAWS IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES.

8. General Provisions:

• No Partnership or Joint Venture. Nothing contained in these Terms and Conditions shall create any partnership, joint venture, agency or other relationship between VG and Customer, except that of independent contractors.  Neither Party can legally bind the other Party without its written consent.

• Successors/Assigns. These Terms and Conditions are binding upon, and inures to the benefit of the Parties’ successors, assigns, heirs, and personal representatives.

• Neither Party will be responsible for the other Party’s indirect losses or consequential damages, except as specifically set forth in these Terms and Conditions

• Technology Clause. Any and all (i) inventions (whether or not reduced to practice and whether or not patentable), (ii) works of authorship, (iii) trade secrets, know-how, confidential information (including but not limited to confidential ideas, research and development, technology, discoveries, methods, formulas, compositions, manufacturing processes, designs, specifications, clinical trial protocols, statistical analyses and other regulatory information, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) and all other proprietary information and data conceived, developed or reduced to practice by VG, in whole or in part, after the date hereof and during the Term (collectively, “New Technology”) shall be owned by VG.  For no additional consideration, Customer hereby assigns to VG all of Customer’s right, title and interest, worldwide, in and to any New Technology (including without limitation all intellectual property rights associated therewith and all copies and tangible embodiments thereof, in whatever form or medium) consistent with the ownership described above so that sole and exclusive ownership therein resides in VG.  Customer shall cause each of its employees, contractors and consultants to execute and deliver an agreement assigning all of their respective right, title and interest in and to any New Technology consistent with this Section so that sole and exclusive ownership therein resides in VG.

• Exclusivity. Nothing stated herein shall prevent Company from offering its services to other recipients/members/customers other than Customer.  Customer is aware that Company provides similar services to Company’s other customers and/or clients for fulfillment and reporting services, and acknowledges that Company’s relationship with Customer will not be exclusive.

• Customer Website. VG reserves the right to inspect Customer’s website with respect to compliance with applicable laws, rules and regulations, including, without limitation, California Proposition 65 (collectively, “Applicable Law”).  If VG, upon the advice of counsel, determines that Customer’s website is not fully compliant with Applicable Law, it shall have the right to request that Customer modify its website in such respects as may be necessary to effectuate full compliance with Applicable Law.  In the event that Customer shall fail to make such modifications within 30 days of any such request, VG shall have the right to terminate the business relationship with Customer, immediately upon written notice, without penalty or liability of any kind to Customer.
• Force Majeure. In the event any of the Parties hereto is unable to carry on its normal operations or is compelled to reduce or suspend its operations (excluding Customer’s payment obligations) because of forces beyond its immediate reasonable control (a “Force Majeure Event”), including, but not limited to, fire, flood, war, embargo, strike, boycott, lockout, labor difficulty, accident, explosion, severe weather, riot, insurrection, shortage of fuel, mechanical breakdown, Acts of God, virus, disease, pandemic, government shutdown orders, or expropriation by governmental authority, or for any failure of any kind if the same shall be caused in any way by federal, state, or other government authority, the Party so affected shall be relieved to that extent from performing its obligations In such event, such Party shall take all reasonable measures to remove the disability and resume full performance hereunder at the earliest possible date.
• COVID-19.
• The Parties agree that the Coronavirus (COVID-19) pandemic is impacting warehousing, trucking, shipping, labor resources, service providers and consumers. There is a possibility that Company and Customer may be providing limited or no Services as a result of COVID-19 issues. COVID-19 issues may include, but are not limited to: emergencies declared by the government, travel restrictions, mandatory closures or reduction of staff at Company’s location(s), related service providers, quarantine, exposure to or contraction of COVID-19.
• If a COVID-19 issue should arise making compliance with the terms of this Agreement impossible or improbable as a result of such COVID-19 issue, the Parties agree to extend all deadlines in this Agreement until after the end of the COVID-19 issue (Extension Date). Should the COVID-19 issue continue for more than sixty (60) days either Party shall have the right to terminate the Contract. Such termination must be made in writing to the other Party.

• Entire Agreement. The Pricing Agreement, these Terms and Conditions, and the Schedules or Addenda attached hereto or incorporated herein by reference, set forth all of the terms and conditions of the agreement between the Parties with respect to the subject matter hereof, and supersedes and supplants all prior agreements, representations, promises and understandings between the Parties with respect to such subject matter. These Terms and Conditions cannot be amended except by a writing signed by Company.

• Applicable Law. These Terms and Conditions shall be construed and interpreted in accordance with the laws of the State of California.

• Disputes. The Parties shall first attempt to resolve any dispute related to these Terms and Conditions in an amicable manner by mediation in Napa County, California, with a mutually acceptable mediator.  If unable to agree upon an acceptable mediator, either Party may ask the American Arbitration Association (“AAA”), or any other mutually acceptable mediation service to appoint a neutral mediator, and the mediation shall be conducted under applicable Commercial Mediation Rules.  Any disputes remaining unresolved after mediation shall be resolved by binding arbitration conducted in Napa County, California by AAA or any other mutually acceptable arbitration service under applicable Commercial Arbitration Rules. The prevailing Party in arbitration shall be entitled to recover its costs and reasonable attorney’s fees, as determined by the arbitrator, but shall not be awarded any indirect, consequential, incidental or punitive damages under any theory of recovery.

• Attorneys’ Fees. If any Party to these Terms and Conditions shall bring any action, suit, counterclaim, appeal, arbitration, or mediation for any relief against the other Party, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder (collectively, an “Action”), the losing Party shall pay to the prevailing Party a reasonable sum for attorneys’ fees and costs incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling, or award (collectively, a “Decision”) granted therein, all of which shall be deemed to have accrued on the commencement of such Action, and shall be paid whether or not such Action is prosecuted to such Decision.  The court or arbitrator may fix the amount of reasonable attorneys’ fees and costs on the request of a Party.  For the purposes of this paragraph, attorneys’ fees shall include, without limitation, fees incurred in the following: (a) post judgment motions and collection actions; (b) contempt proceedings; (c) garnishment, levy, and debtor and third party examinations; (d) discovery; and (e) bankruptcy litigation.  “Prevailing Party” within the terms of this paragraph includes, without limitation, a party who agrees to dismiss an Action on the adverse Party’s payment of the sums allegedly due or performance of the covenants allegedly breached, or who obtains substantially the relief sought by it. Any such legal action shall be venued in Napa County, California and shall be governed by California Law.

• Amendment/Waiver.

• No waiver or modification of these Terms and Conditions or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the Company. Furthermore, no evidence of any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting these Terms and Conditions, or the rights or obligations of Company hereunder, unless such waiver or modification is in writing, duly executed as aforesaid.

• All provisions of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, and limitations of liability.