TOS - Wineshipping

1. Services

A Master Service Agreement (“Agreement”) has been executed by the Parties, and these Terms of Service were acknowledged and accepted by the Parties upon execution of the Master Service Agreement. A copy of these Terms of Service were provided along with the Master Service Agreement and are at all times available to the Customer upon request and online at [wineshipping.com/tos]. Please note that the Terms of Service are subject to change without further notice.

1. Services.

Wineshipping shall provide services to Customer for orders of Customer’s wine and non-wine products (collectively, the “Product(s)”) placed by Consumers with Customer. As used in this Agreement, “Consumers” mean end users of the Product who have purchased the Product from Customer. Wineshipping’s services shall be identified in Exhibit A (Scope of Work) and details related to those services shall be set forth in Exhibit B (Service Level Agreement-SLAs), Exhibit C (Pricing and Cost Factors) and Exhibit D (Service Guide), all of which may be amended from time to time (collectively, the “Services”). Wineshipping will use commercially reasonable efforts to ship Product in accordance with the shipment schedule set forth in Exhibit B.

2. Term and Termination

2. Term and Termination.

Term. The Term shall commence on the Effective Date, and unless earlier terminated as set forth in this Agreement, shall remain in force until the third (3rd) anniversary of this Agreement (“Initial Term”). The Initial Term shall be automatically renewed for successive one (1) year extension periods unless either Party gives the other Party not less than ninety (90) days’ prior written notice of non-renewal prior to the end of the Initial Term or any renewal term (“Renewal Term”). Together the Initial Term and any Renewal Term shall be defined as the “Term”.

A. Termination.

Termination for Convenience. Throughout the Term, either Party may terminate this Agreement for convenience by providing advance written notice to the other Party of at least ninety (90) days.
Termination for Cause. Throughout the Term, either Party may terminate this Agreement for cause (as defined below) by providing advance written notice to the other Party of at least thirty (30) days. Termination for cause shall be available to the aggrieved Party in the event that the other Party: (i) fails to cure a Material Breach (as defined below) under this Agreement after receiving written notice thereof within the applicable timeframe identified in the notice of Material Breach, unless an extension of time is agreed to in writing by both Parties (certain material breaches, including but not limited to, a loss of licensure(s) or permit(s) may necessitate shorter cure periods than other material breaches); (ii) becomes insolvent, files or has filed against it a petition in bankruptcy or similar petition, makes an assignment for bankruptcy and in the case of an involuntary petition, the proceeding is not dismissed within sixty (60) days; (iii) makes a general assignment for the benefit of creditors, or generally becomes unable to pay its debts as they become due or is subject to an order made or resolution passed for it to be wound up or for the appointment of a judicial manager; (iv) has a receiver or similar officer appointed to take charge of any of that Party’s assets; (v) ceases to carry on its business or operations, (vi) if all or any party of such Party’s business related to this Agreement is vested in or made subject to the control or direction of any governmental agent, officers, governmental agent or designee.

Subclauses 2.B.2. (i) through 2.B.2.(vi) of this Section are collectively defined as “Cause”. The right of a Party to terminate this Agreement for Cause shall be in addition to all other legal and equitable remedies available to such Party, which such Party may continue to pursue after termination. A “Material Breach” shall mean any Party’s failure to perform a major part of this Agreement and the breach is substantial and prevents this Agreement from being completed or defeats the purpose of this Agreement. The right to suspend performance under this Agreement is not limited or impaired by this Section 2(B)2.

Winding Down. Prior to any termination or expiration of this Agreement, the Parties shall have the following obligations:

Not later than thirty (30) days after the expiration or other termination of this Agreement, Customer shall pick up and take possession of the Product and any custom and/or branded packaging that remains in inventory at a mutually agreed-upon time during such period.
Upon expiration of this Agreement, the Customer shall pay all transportation charges for Product relocation unless the Parties agree in writing to an alternate cost-sharing allocation of the associated expenses.
Upon termination of this Agreement for convenience, the terminating Party shall pay all transportation charges for Product relocation.
Upon termination of this Agreement for Cause, the non-terminating Party shall pay reasonable transportation charges for Product relocation.
Upon expiration of this Agreement or upon earlier termination of this Agreement by Wineshipping for Cause, Customer shall reimburse Wineshipping for any costs associated with such expiration or termination of this Agreement, including, but not limited to the cost of unused non-standard packaging procured on behalf of Customer (which shall be delivered to Customer upon request), costs associated with inventory consolidation, transportation, and warehouse labor required to prepare Product, merchandise, packaging, and collateral. If Customer elects to use Wineshipping transportation services, transportation costs will be invoiced at cost plus 30% and labor will be invoiced at then current labor rates.
Subject to the terms of any warehouseman letter(s) or warehouseman agreement(s) agreed to by Wineshipping in writing related to a lender’s collateral interest in Customer’s goods, upon expiration of the Term of this Agreement, or if this Agreement is terminated by Wineshipping for Cause, in addition to all other remedies provided for under this Agreement, Wineshipping shall have the right to withhold and dispose of such Product to satisfy in full any outstanding invoices or other sums owed by Customer under this Agreement, but solely to the extent of such outstanding invoices or other sums. To the extent that Wineshipping has procured any custom and/or branded packaging on Customer’s behalf during the Term, Wineshipping reserves the right to invoice Customer for any Customer authorized unused/excess packaging at actual cost.
Customer shall use all commercially reasonable methods at its disposal to locate a new service provider and at its own cost and expense, transport all Products from Wineshipping to a new facility as quickly as is practicable, the cost and expense of which shall be borne as contemplated in this Section.
Customer shall keep Wineshipping reasonably informed on a weekly basis of progress made in transporting all Products to a new warehouse, including notifying Wineshipping in writing, of the date that all future shipments will be diverted to a new warehouse, for the purpose of allowing Wineshipping to maximize the usable and sellable space at its disposal, provided nothing herein shall obligate Customer to adhere to the exact schedule however Customer must fully vacate Wineshipping’s facilities not later than thirty (30) days after the termination or expiration of this Agreement unless previously agreed to by Wineshipping in writing.
Unless otherwise agreed to by the Customer, within a reasonable time after expiration or termination of this Agreement, Wineshipping agrees to discontinue use of Customer’s trademark(s) and all advertising of or reference to Customer’s Products, except as solely permitted pursuant to the disposition of inventory of Product pursuant to this Section.
Both Parties shall cooperate with the other, act in good faith and use commercially reasonable efforts to ensure the smooth transition of goods and services to another location.

3. Fees

3. Fees. The pricing for the Services is set forth on Exhibit C and is subject to adjustment as set forth in this Agreement and its Exhibits which may be amended from time to time. Upon thirty (30) days written notice, the pricing for Services is subject to adjustment by Wineshipping based on market conditions related to inflation and costs associated with transportation, fuel and labor. Notwithstanding the above, the Parties recognize that Common Carrier fees can increase from time to time (including but not limited to Demand Surcharges and Peak Season Surcharges), and Wineshipping reserves the right to increase prices should there be any package shipment price increases from any carrier, at any time during the Term, which affects the rates charged to Wineshipping for certain Services, as well as at the beginning of each calendar year, in tandem with the publishing of updated annual rates by carriers.

4. Payment

4. Payment. Customer shall pay all invoices for Services within fourteen (14) days of invoice date. Undisputed portion(s) of invoices, if not paid when due, shall accrue interest at the rate of the lesser of one-and-one-half percent (1.5%) per month or the maximum rate permitted by law. Wineshipping reserves the right to suspend the performance of any or all Services if any undisputed invoice balance (including any accrued but unpaid interest) remains due and payable more than thirty-six (36) days from the date of invoice. If an undisputed invoice remains due and payable after twenty-one (21) days in any calendar month, Customer will not be eligible for any discounts, rebates, or other incentive programs. If Customer disputes any portion of a Wineshipping invoice, Customer must timely pay the undisputed portion of the invoice and submit written notice of the claim with sufficient detail of the nature of the claim, the amount in dispute and any information necessary to investigate the dispute. All invoice disputes must be submitted to Wineshipping within seven (7) days from the date of the invoice in question. Customer waives the right to dispute any charges not disputed within such seven (7) day period.

5. Customer Representations and Warranties

5. Customer Representations and Warranties. Customer represents and warrants to Wineshipping as follows:

A. It is a corporation or limited liability company duly organized, validly existing, and in good standing under the laws of the jurisdiction where it was incorporated or organized and has the full power to enter into this Agreement. The person executing this Agreement on Customer’s behalf is authorized to execute such Agreement on Customer’s behalf.

B. This Agreement and the Exhibits constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization, or similar laws affecting creditors’ rights generally and except as enforcement may be limited by general principles of equity.

C. Customer holds all licenses and permits required under applicable law and regulations with respect to the sale and/or distribution of the Products and is in good standing with all regulatory authorities.

D. By tendering Products to Wineshipping, Customer represents and warrants that: (i) there are no potential health, safety and/or environmental hazards associated with the proper storage and handling of said Products which have not been disclosed to Wineshipping and affirmatively accepted by Wineshipping, and (ii) Customer lawfully possesses the Products and has the right and authority to store them with Wineshipping.

E. If at any time the Products are a hazard to the Facilities or other property or persons, then Wineshipping may request Customer to promptly remove the Products from Wineshipping’s facilities or other location where they are stored. In the event of immediate hazard, Wineshipping may remove any hazardous Products from Wineshipping’s facilities and will not incur liability by doing so.

6. Customer’s Obligations

6. Customer’s Obligations. Throughout the Term, Customer will:

A. Be responsible for keeping informed of and in compliance with all applicable laws and regulations with regard to shipping and selling Products in each state to which it ships. Customer will give Wineshipping prompt written notice should Customer be in breach of any such applicable laws and regulations or receive notice of such breach from any governmental authority.

B. Be responsible for keeping records of each shipment and tracking quantities shipped to any one Consumer in light of state limitations.

C. Maintain all necessary state, federal and local government licenses and permits necessary to permit the sale and/or distribution of wines and, on the request of Wineshipping, provide Wineshipping with copies of the same.

D. Provide Wineshipping with full and correct addresses and contact information for the destination of all of Customer’s Products to be shipped by Wineshipping.

E. Provide Wineshipping with properly labeled Products in conformance with Section 10. Products and any other requirements as identified in the Exhibits to this Agreement.

F. If applicable, timely provide Wineshipping with sufficient packaging materials to facilitate fulfillment Services.

G. Maintain sufficient insurance coverage for the net replacement value of Customer’s Products located at any of Wineshipping’s warehouse locations where Customer’s Product is stored providing coverage against loss or damage by fire or other peril. Customer’s policy of insurance shall name Wineshipping as an additional insured and shall provide that it may not be cancelled, terminated, or modified without thirty (30) days’ advance notice to Wineshipping. Customer shall, prior to Wineshipping’s taking possession of any of Customer’s Product and from time to time upon the request of Wineshipping, provide to Wineshipping a Certificate of Insurance in compliance with the foregoing.

H. Be responsible for all invoicing of and collection from the retail Consumers of Customer’s Products shipped by Wineshipping.

I. Collect and remit to appropriate governmental authorities all sales tax applicable to the sale of Customer’s Products shipped by Wineshipping.

J. Comply with all applicable laws related to the production, bottling, labeling, distribution, and sale of the Product. Ensure any instructions to Wineshipping regarding Product handling, shipping and distribution comply with applicable laws.

K. Forecasting Requirements. Provide Wineshipping with rolling forecasts of anticipated shipments as per Exhibit A Scope of Work.

7. Wineshipping represents and warrants to Customer as follows

7. Wineshipping represents and warrants to Customer as follows: Wineshipping, or its affiliate, subsidiary or contracted partner(s), hold(s) all licenses and permits required under applicable laws and regulations to compliantly perform the Services and obligations under this Agreement, and Wineshipping, or its affiliate, subsidiary, or contracted partner(s), is/are in good standing with all regulatory authorities when performing the Services.

8. Wineshipping’s Obligations

8. Wineshipping’s Obligations. Throughout the Term of this Agreement, Wineshipping will:

A. Use commercially reasonable efforts to provide to Customer the Services set forth on Exhibit A, which Services shall be provided in accordance with applicable laws.

B. Maintain its status as an authorized shipper of Products and maintain all licenses and permits necessary for Wineshipping to perform its Services. Provide carriers and state authorities with shipping reports as required to maintain this status.

C. Notify Customer of any claims of Customer against common carriers used to ship Customer’s Products and assist Customer in making claims for loss or similar matters against any common carrier used to transport Customer’s Product after it leaves Wineshipping’s facility.

D. Use reasonable care in accordance with industry standards in the handling and shipping of Customer’s Products.

E. Generally, maintain corporate operating hours Monday through Friday, 8:00am to 5:00pm (local time), except during Company observed holidays as indicated in Exhibit D (Service Guide), which are updated periodically in the Wineshipping Awesome Client Portal, or as a result of Force Majeure Event. Holidays are subject to change and the annual holiday schedule will be communicated to Customers. Facilities maintain operating hours based on operating conditions for the specific Facility and Wineshipping’s network of Facilities to accommodate business needs. For the most current information, Customers should request specific Facility operating hours from Wineshipping customer service.

9. Insurance

9. Insurance.

A. Wineshipping does not insure Customer’s Products against loss or damage however caused. However, Wineshipping, with respect to its Facilities and the Services will maintain at its sole expense, the following insurance coverage as set forth in this Section and shall furnish Customer with a certificate of insurance for all policies of insurance required hereunder upon request: (i) Commercial general liability insurance with a minimum limit of One Million U.S. Dollars ($1,000,000 USD) combined single limit per occurrence for bodily injury, personal injury, and/or property damage; and (ii) Commercial Umbrella and Excess Liability with limits up to $4,000,000 in the aggregate.

B. Customer will obtain and maintain throughout the Term of this Agreement, at its sole expense, casualty and other insurance covering loss or damage to Customer’s Products, including but not limited for losses and damages incurred during flooding, earthquake, or hurricane, and make Wineshipping a named insured. Without limiting the foregoing, Customer, will maintain at its sole expense, the following insurance coverage, and shall furnish Wineshipping with a copy of certificates of insurance for all policies of insurance required hereunder upon request: (i) Workers’ Compensation to the extent required by applicable state and federal laws and regulations covering each of Customer’s employees who may enter the Facilities; (ii) Employer’s Liability with limits not less than one million U.S. dollars ($1,000,000) per occurrence; (iii) Commercial general liability insurance with a minimum limit of One Million U.S. Dollars ($1,000,000 USD) combined single limit per occurrence for bodily injury, personal injury, and/or property damage; (iv) All-risk property insurance covering the full value of Customer’s Products under this Agreement; and (v) Commercial Umbrella and Excess Liability with limits not less $4,000,000 general aggregate.

C. Whenever (a) any loss, cost, damage or expense resulting from fire, explosion or any other casualty or occurrence is incurred by any of the Parties to this Agreement, or anyone claiming by, through or under it in connection with the Services and (b) such Party is then covered in whole or in part by insurance with respect to such loss, cost, damage or expense or is required under this Agreement to be so insured, then the Party so insured (or so required) hereby releases the other Party from any liability for such loss, cost, damage or expense to the extent of any amount recovered by reason of such insurance (or which costs would have been recovered had such insurance been carried as so required) and waives any right of subrogation which might otherwise exist in or accrue to any person on account thereof. The insurance which each Party is required under this Agreement to maintain shall contain an endorsement waiving the insurer’s right of subrogation against the other Party, and each Party represents and warrants to the other Party as of the date hereof that the insurance each Party is required to maintain under this Agreement presently contains an endorsement whereby the insurer waives subrogation rights.

10. Products

10. Products.

A. A bill of lading or packing slip must accompany the delivery of Product and material from Customer, which must show the Product SKU number, a description of Product, and the quantity of Products. Wineshipping shall notify Customer of shortage in bills of lading or packing slip(s), but Wineshipping shall not be responsible for any loss because of such shortage. All Product provided by Customer must bear a clearly visible identity and quantity. Product delivered on pallets must be substantially identical, unless clearly marked and separated. Multiple items included within a single carton, pallet or container must be noticed thereon and on accompanying paperwork. Pallets shall be configured in accordance with Wineshipping’s pallet configuration safety guidelines found in Exhibit D (Service Guide). Wineshipping retains the right to impose additional charges for any rework necessary for materials or Products not meeting these specifications. Special handling may require a revised shipping schedule. Wineshipping shall not be responsible for picking and packing errors that result from Customer’s failure to properly code any Product.

B. Excess Product is any Product and its product-specific packaging and marketing materials which if received into inventory or already in inventory would either (a) result in Products occupying pallet positions exceeding one hundred and ten percent (110%) of the allotted pallet positions associated with the forecasted inbound volume provided by Customer for that period; or (b) exceeds one hundred and twenty percent (120%) of Product needed to meet short-term order fulfillment (sixty (60) days of inventory for projected orders) based on Customer’s projected order volume for that period (“Excess Product”).   Wineshipping reserves the right to limit inbound freight (Excess Product) based on set pallet storage capacities by Facility. Pallet storage capacities for utilized Facilities are either outlined in a Scope of Work or can be obtained by contacting customer service. In the event that Customer’s Products exceeds capacity in a Facility, the Parties will work together to develop a storage plan to fit the Customer’s business needs. If Excess Product causes operational challenges to Wineshipping, then Wineshipping has the right to move the inventory from short-term fulfillment to long-term storage within or outside of its network.   Wineshipping shall charge a per case, per month storage fee for all Customer Product at Wineshipping’s Facilities, and if a Wineshipping Facility is unavailable due to pallet storage capacities, Wineshipping will work with Customer to determine an alternate location outside of its network with acceptable pricing.   Storage charges shall be invoiced to Customer as of the first (1st) day of the month; cases are intended to reflect nine (9) liter equivalent cases irrespective of actual bottle formats in inventory; and partial cases shall round up to the nearest whole case for purposes of storage fee calculation.

C. For consumer-initiated complaints regarding Product damage allegedly caused or resulting from carrier handling, Customer shall give Wineshipping written notice of a claim for damages for loss or injury to the Products, within a reasonable time, and in no event later than five (5) business days after the earlier of (a) delivery of the Products to Consumers, or (b) the date Customer receives a written notice that loss or injury to the Products has occurred. Wineshipping will facilitate claims against carriers on behalf of Customer as requested; however, Wineshipping maintains no liability for Products damaged in transit. Wineshipping reserves the right, in its sole discretion, to require Customer to make reasonable changes to its packaging in the event of excessive damage claims or any other packaging-related impact on the Services.

For consumer-initiated complaints regarding Product damage allegedly caused by or resulting from Wineshipping’s fulfillment service, Customer shall give Wineshipping written notice within forty-eight (48) hours of (a) delivery of the Products to Consumers, or (b) the date Customer receives a written notice that loss or injury to the Products has occurred. Any dispute of a claim will be asserted in good faith and resolved by the Parties through negotiation within thirty (30) days.

For consumer-initiated complaints regarding allegedly inaccurately fulfilled sales orders (Product received in Error or Product missing from order(s) fulfilled by Wineshipping), Customer will notify Wineshipping in writing and Wineshipping will research the alleged shipping error and respond to the Customer complaint within seven (7) calendar days with the results of that research. In the event it is proven that Wineshipping was at fault, Wineshipping will reship replacement Product at their expense.

D. In the event of an alleged inventory discrepancy, the Parties will investigate the alleged discrepancy through records reconciliation to preclude book balance discrepancies as the cause of the inaccuracy. Inventory accuracy shall be evaluated by comparing the Wineshipping warehouse management system inventory to the physical inventory; for the avoidance of doubt, inventory accuracy shall not be evaluated by comparing the Customer’s inventory records to Wineshipping’s records (i.e., book balance discrepancies). Inventory discrepancies that cannot be reconciled through records reconciliation are categorized as inventory shrinkage or loss due to damage, as respectively defined herein.

Inventory Shrinkage (“Inventory Shrinkage” and/or “Shrinkage”) means the amount of Product, expressed as a percentage of the total units of Product received for the Customer, that cannot be located because of Wineshipping’s error or negligence. Missing inventory shall not qualify as Inventory Shrinkage unless the missing inventory is proven to result from Wineshipping’s error(s). Inventory Damage (“Inventory Damage” and/or “Damage”) means greater-than-cosmetic damage to bottles, resulting in container penetration, expressed as a percentage of the total units of Product received for the Customer. Cosmetic damage to the container, labels, seals, closures, and other packaging components that do not compromise the integrity of the contents of the container shall not be considered Inventory Damage.

In the event of inventory Shrinkage and/or Damage, Wineshipping will pay to the Customer the landed cost of units of Product lost due to Shrinkage or Damage and exceeding two percent (2%) of total bottles received in that calendar year. For example, if Wineshipping is missing eleven (11) units and damages ten (10) units, and one thousand (1,000) units of Product are received in the current calendar year, then Inventory Shrinkage and/or Damage allowance of two percent (2%), or twenty (20) units of Product, would be deducted from total Product lost due to Shrinkage and/or Damage in the calendar year, thus Wineshipping would pay the landed cost of one (1) unit of Product. In no event shall a payment be made prior to the completion of a physical inventory count, but it shall not be unreasonably delayed once the Parties have determined the cause of the discrepancy and the loss exceeds the allowable tolerance. Notwithstanding anything to the contrary contained elsewhere in this Agreement, the remedies provided in this Section shall be Customer’s sole and exclusive remedies in the event of loss or Damage to Product.

11. Title

11. Title. Wineshipping shall have a general warehouseman’s lien (“Warehouse Lien” and/or “Warehouseman’s Lien”) for all lawful charges for storage and preservation of Customer’s Products and packaging, also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing coopering, and other charges and expenses in relation to such Products, and for the balance on any other accounts that may be due. Wineshipping further claims Warehouse Lien for all such charges, advances, and expenses with respect to any other Products stored by Customer in any other facility owned or operated by Wineshipping. Wineshipping hereby acknowledges, represents, and warrants that, except for Wineshipping’s statutory general Warehouseman’s Lien all the Products stored at Wineshipping’s facilities or otherwise in the possession of Wineshipping, the Products shall remain the property of Customer.

12. Limitations of Liability

12. Limitations of Liability.

A. THE FOLLOWING LIMITATIONS SHALL NOT APPLY TO ANY CLAIM THAT IS SUBJECT TO INDEMNIFICATION UNDER THE INDEMNIFICATION SECTION OF THIS AGREEMENT: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, REVENUES OR DIMINUTION IN VALUE, ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES, AND (C) WHETHER BASED ON LEGAL OR EQUITABLE THEORY, CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

B. NOTWITHSTANDING ANYTHING CONTRARY CONTAINED ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL WINESHIPPING’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID TO WINESHIPPING HEREUNDER IN THE THREE (3) MONTHS BEFORE THE DATE SUCH CLAIM AROSE. THE FOREGOING LIMITATIONS APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

C. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

D. Wineshipping will not be responsible for refused or returned shipments due to incorrect addresses furnished by Customer or the actions of the addressee in refusing the shipment. Wineshipping retains the right to refuse at any time to ship Product to any state that prohibits or restricts interstate shipment of alcoholic beverages. Wineshipping retains the right to refuse to ship any Products it believes to be illegal or in violation of the intellectual property rights of any third party.

13. Indemnity

13. Indemnity.

A. Indemnification by Wineshipping. Subject to the limitations contained elsewhere in this Agreement (including but not limited to Section 12.B., Wineshipping shall defend, indemnify and hold harmless Customer and its officers, directors, agents, employees, subsidiaries, partners, members and controlling persons from any and all third-party claims, suits, proceedings, liabilities, damages, penalties and expenses, including reasonable counsel fees and expenses, and/or any other loss (collectively “Losses”), incurred by or imposed upon the Customer by reason of or as a result of (i) any breach by Wineshipping of any representations or covenants of Wineshipping set forth in this Agreement (ii) infringement of the rights (including, without limitation, the intellectual property rights, proprietary rights, rights to privacy and rights to publicity) of any person or entity arising out of the use, sale or marketing of Wineshipping’s Services, or (iii) violation of any law applicable to Wineshipping’s performance of Services for the Customer.

B. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Wineshipping and each of its officers, directors, agents, employees, subsidiaries, partners, members and controlling persons from any and all Losses incurred by or imposed by reason of or as a result of (i) any breach of any representations or covenants of Customer set forth in this Agreement or Customer’s gross negligence or willful misconduct, (ii) infringement of the rights (including, without limitation, the intellectual property rights, proprietary rights, rights to privacy and rights to publicity) of any person or entity arising as a result of sale, use, or marketing of Customer’s Products, (iii) violation of any law applicable to Customer’s business operations, or (iv) any product liability claims related to the Products, including but not limited to any patent or latent defects in the Products or the dangerous condition thereof.

C. Indemnification Procedure. The Party seeking indemnification from the other Party in connection with a third-party claim (the “Indemnified Party”) shall provide the other Party (the “Indemnifying Party”) with prompt written notice of such third-party claim (a “Claim”) for which indemnity is sought. If the Indemnifying Party is so notified, the Indemnifying Party shall respond within fifteen (15) days notifying the Indemnified Party of whether, at its option, Indemnifying Party will assume its indemnification obligations for any given Claim.

If the Indemnifying Party assumes control and defense of such Claim, (i) the Indemnifying Party shall be responsible for the payment of attorneys’ fees, other professionals’ and experts’ fees and court or arbitration costs incurred by the Indemnifying Party in connection with defending such Claim against an Indemnified Party; (ii) the Indemnified Party shall be entitled to participate in, but not determine or conduct, the defense of such Claim and the Indemnifying Party shall not be, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Section for any fees of other counsel or any other expenses with respect to the defense of such Claim, other than reasonable costs of investigation; (iii) the Indemnified Party shall make available to the Indemnifying Party all books, records and other documents and materials that are under the direct or indirect control of the Indemnified Party and that the Indemnifying Party considers necessary or desirable for the defense of such Claim (provided, however, that nothing herein shall require any of the Indemnified Party to take any action that could reasonably be expected to result in the loss or waiver of the attorney-client privilege, work product doctrine or other similar privilege); (iv) the Indemnified Party shall execute such documents and take such other actions as the Indemnifying Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Claim; (v) the Indemnified Party shall otherwise fully cooperate as reasonably requested by the Indemnifying Party in the defense of such Claim; (vi) the Indemnifying Party shall not enter into any agreement providing for the settlement or compromise of such Claim or the consent to the entry of a judgment with respect to such Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) if the proposed settlement would be in the Indemnified Party’s name or impose pecuniary or other liability or an admission of fault or guilt on the Indemnified Party or would require the Indemnified Party to be bound by an injunction of any kind; and (vii) as a condition to assuming the defense of such Claim, the Indemnifying Party shall agree and acknowledge that all Losses incurred or sustained by an Indemnified Party as a result of such Claim shall be deemed indemnifiable Losses for all purposes under this Agreement.

If the Indemnifying Party elects not to defend a Claim against a Indemnified Party, then (v) the Indemnified Party shall conduct the defense of such Claim, (w) the Indemnifying Party shall be entitled to participate in, but not determine or conduct, the defense of such Claim, (x) the Indemnifying Party shall execute such documents and take such other actions as the Indemnified Party may reasonably request for the purpose of facilitating the defense of, or any settlement, compromise or adjustment relating to, such Claim, (y) the Indemnifying Party shall otherwise fully cooperate as reasonably requested in the defense of such Claim, and (z) the Indemnified Party shall not enter into any agreement providing for the settlement or compromise of such Claim or the consent to the entry of a judgment with respect to such Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).

14. Confidentiality

14. Confidentiality.

A. Confidential Information. Either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services, forecasts, confidential information, and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive, competitive, or proprietary information, including without limitation any information specifically identified in any Addenda and the Exhibits attached to this Agreement. Such information, as well as the existence and terms of this Agreement, whether orally, written, by demonstration, or otherwise, in electronic or other form or media and whether marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Notwithstanding the foregoing, Confidential Information does not include information that, at the time of disclosure:

is or becomes generally available to and known by the public other than resulting, directly or indirectly, from any breach of this Section by the Receiving Party or any of its representatives;
is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that the third party is not and was not prohibited from disclosing the Confidential Information;
was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party;
was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or
must be disclosed under applicable law.

B. Protection of Confidential Information. The Receiving Party shall:

protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
not disclose any of the Confidential Information to any individual, sole proprietorship, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company, institution, public benefit corporation, joint venture, entity or governmental body (each a “Person”), except to the Receiving Party’s representatives who have a need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

The Receiving Party shall be responsible for any breach of this Section caused by any of its directors, officers, employees, agents, and representatives. On the expiration or earlier termination of this Agreement, at the Disclosing Party’s written request, the Receiving Party and its representatives shall promptly return and/or destroy (as requested by the Disclosing Party) all Confidential Information received under this Agreement.

C. Material Non-Public Information (MNPI) and Trading of Securities. Wineshipping is aware that the United States securities laws restrict persons with material non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company, or from communicating such information to any other person when it is reasonably foreseeable that such person is likely to purchase or sell such securities on the basis of such information. In accordance with such securities laws, Wineshipping, as a Receiving Party, agrees not to trade in securities of the Customer on the basis of material non-public information (including but not limited to material, non-public Confidential Information).

15. Relationship of the Parties.

15. Relationship of the Parties. Wineshipping will act as an independent contractor under this Agreement and will perform its obligations under this Agreement using its own employees, contractors, or agents. Wineshipping will, in its sole discretion, determine the manner and means of accomplishing its obligations and will direct, control, and supervise its employees. Wineshipping will not hold itself out as an agent of, or joint venture with, Customer, and Wineshipping will have no authority to act on behalf of Customer except to the extent necessary to accomplish its obligations under this Agreement.

16. Entire Agreement; Headings

16. Entire Agreement; Headings. This Agreement, any Addenda, and the Exhibits hereto set forth the entire agreement and understanding between the Parties as to the subject matter hereof and supersede all prior discussions, agreements and understandings of any kind, and every nature between them. Each Party confirms that it has not relied upon any statement, representation or understanding that is not an express term of this Agreement and shall not have any remedy in respect of any statement, representation or understanding that is not an express term of this Agreement. The headings of this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation or construction of this Agreement.

17. Amendment of Agreement; Counterparts

17. Amendment of Agreement; Counterparts. This Agreement shall not be changed, modified or amended except in writing and signed by both Parties. This Agreement may be executed and delivered in counterparts, which execution and delivery may be by facsimile or electronic transmission, each of which shall be an original, but all of which shall constitute one, and the same, document.

18. Successors and Assigns

18. Successors and Assigns. Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that each Party may assign this Agreement, without the consent of the other Party, to an affiliate or to the purchaser of substantially all of its assets or other successor to the business of such Party. This Agreement shall be binding on, and inure to the benefit of, each party’s heirs, executors, administrators, successors, and permitted assigns.

19. Arbitration

19. Arbitration. Any controversy or claim arising out of or in any way connected with this Agreement or the alleged breach thereof shall be resolved by one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA) then in effect in San Francisco, California and shall be held in the Napa County Area. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Costs of AAA will be shared equally by both Parties.

20. Attorneys’ Fees

20. Attorneys’ Fees. If any legal action, including arbitration, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees from the other Party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing Party may be entitled.

21. Notices

21. Notices. Any notice required or permitted to be given under this Agreement shall be written and may be given by personal delivery, or by electronic mail with confirmation of receipt requested, or by registered or certified mail, first-class postage prepaid, return receipt requested. Notice shall be deemed given upon actual receipt in the case of personal delivery, or upon mailing. Electronic notices shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Mailed notices shall be addressed to the principal address of the Party as set forth in signature page, below, or to such other address as may be provided by either Party by written notice.

22. Force Majeure

22. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent the failure or delay is caused by or results from acts or conditions beyond the impacted Party’s (“Impacted Party”) reasonable control, including the following events (each a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) requirements of applicable law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency, including but not limited to a government shutdown, (h) epidemic, pandemic or quarantine, (h) strikes, labor stoppages, or slowdowns or other industrial disturbances, and/or (i) shortage of adequate power or transportation facilities. In the event of a Force Majeure Event resulting in a failure or delay of Wineshipping’s performance of the Agreement, Customer shall compensate Wineshipping for all Services provided during the period of the Force Majeure Event but shall not be required to compensate Wineshipping for Services not performed during the period of the Force Majeure Event. Notwithstanding the foregoing, should a Force Majeure Event result in Customer’s Products remaining in one or more of Wineshipping’s facilities beyond the time period identified in the Products Section of this Agreement, Wineshipping shall be entitled to compensation for the storage of Customer’s Products if not removed in the time period requested. For purposes of this provision when applied to Wineshipping, “Impacted Party” includes any subcontractor of Wineshipping. If the Products are damaged by an event described in this Section, then Customer will pay for the removal, cleanup, and disposal of such damaged Products.

23. Governing Law

23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflict of law principles thereof.

24. Severability

24. Severability. If any, or application of any, term or provision of this Agreement is deemed invalid or unenforceable then the remainder of this Agreement any other application of such term or provision will remain in full force and effect and not be affected.

25. Miscellaneous

25. Miscellaneous. Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included are intended to authenticate this Agreement and to have the same force and effect as manual signatures. Delivery of a copy of this Agreement or any other document contemplated herby bearing an original or electronic signature by facsimile transmission, by electronic mail or portable document format (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.

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