Updated Terms & Conditions, Updates will be posted here notating the areas affected by the change.
Updated Terms & Conditions, Updates will be posted here notating the areas affected by the change.
Jul 7 2008, 05:37 PM
Group: Vinfolio Staff
Joined: 13-August 07
Member No.: 21
Vinfolio Terms & Conditions - Updated July 1st, 2008
What this Agreement Covers
This website is owned and operated by Vinfolio, Inc., a California Corporation, doing business as Vinfolio and related entities (collectively, "Vinfolio").
Free registration on this website provides the ability to store frequently used information such as wine queries and personal information used to speed check-out, as well as access to VinCellar software, auction prices and premium third-party content licensed by Vinfolio.
Upon registration, User must provide a working email address and a password. User, or user’s authorized representative, must ensure that these remain confidential at all times and agrees that User is solely and entirely responsible for all activities which occur under User email address and password. User must notify Vinfolio immediately if User becomes aware of any unauthorized use of User email address and password. Each User email address and password must be used by a single user and/or User’s authorized representative(s) and is not transferable. Vinfolio may suspend or terminate access to an account if it suspects unauthorized or improper use.
As a condition of use of this website, User expressly agrees not to use the website, the VinCellar software, or other Internet services provided by Vinfolio for any purpose that is unlawful or prohibited by these Terms. User agrees to abide by all applicable local, state, national, and international laws and regulations. User agrees that User is solely responsible for all acts or omissions that occur under User's account including the content of transmissions through Vinfolio's service.
Without Vinfolio's prior written consent User may not reproduce, distribute, modify, create or display derivative works based on, repost or otherwise use the content of this website. Nothing contained herein shall be construed as conceding any license or right under any copyright or other intellectual property right.
User agrees not to:
1. attempt to access this website or any of its content if User is under the legal drinking age of the jurisdiction from which User accesses this website;
2. upload, post or otherwise transmit through or to this website any content that:
i. is unlawful, abusive, threatening, harmful, obscene, lewd, offensive, defamatory or otherwise objectionable;
ii. might infringe the intellectual property rights, privacy rights, rights of publicity, or other proprietary rights of others;
iii. contains any viruses, Trojan horses, time bombs, or any other harmful programs or elements;
3. disrupt, place unreasonable burdens or excessive loads on, interfere with or attempt to gain unauthorized access to any portion of this website, its computer systems, servers or networks;
4. provide false information about User to Vinfolio, impersonate any other person, or otherwise attempt to mislead others about User's identity or the origin of any content, message or other communication;
5. transmit junk mail, chain letters, or other unsolicited bulk email or duplicative messages;
6. collect information about other visitors to Vinfolio website(s) without their consent or otherwise systematically extract data or data fields, including without limitation any financial data or email addresses;
7. sell access to or the use of this website, including any content contained on, downloaded or accessed from this website, except as specifically permitted in writing by Vinfolio;
8. redistribute any content, including reviews, provided by Vinfolio in any manner whatsoever including by means of printed publication, fax broadcast, web pages, email, web newsgroups or forums, or any other electronic or paper-based service or method;
Vinfolio reserves the right to monitor, review, retain, and/or disclose any information necessary to satisfy any applicable law, regulation, legal process or legitimate governmental request.
"Upload" means to post, enter, or otherwise provide to this website or the VinCellar software. "Contribution" means any tasting notes, comments, photos, data, or other information or materials that a user Uploads and is either displayed solely to the User or publicly. "User owned Contribution" means a Contribution that User, rather than a third party, owns.
By Uploading any Contribution, User represents and warrants that User has the right to Upload that Contribution. User will not Upload any Contribution that User does not have the right to Upload.
Vinfolio will provide a means by which User may designate that a Contribution is not a User-owned Contribution. User will make all such designations appropriately and accurately; absent such designation, Vinfolio may rely upon User's warranty that the Contribution is a User-owned Contribution.
User hereby grants Vinfolio an irrevocable, perpetual, worldwide, fully-paid, non exclusive license to create derivative works of each User-owned Contribution and to use, reproduce, modify, adapt, publish, perform and display the User-owned Contribution and its derivative works, so long as User is not identified as the source thereof; provided, however, that if User authorizes Vinfolio to identify User as the source, then User will be so identified. User represents and warrants that User has the right to grant the foregoing license.
User acknowledges that Vinfolio has no obligation to screen, and does not screen, Contributions when they are Uploaded. Vinfolio, in its sole discretion, may, but will have no obligation to, maintain and utilize Contributions even if User deletes, edits Contributions or removes any Contribution, irrespective of whether any user or third party claims that such Contribution violates these Terms or any rights of such user or third party. Vinfolio may, but under these Terms will have no obligation to, investigate any such claim.
Vinfolio has not reviewed all of the sites that are linked to this website and is not responsible for the content of any off-site pages or any other sites linked to this website. User's linking to any other off-site pages or other sites is strictly at User's own risk.
Vinfolio's right to terminate
Vinfolio reserves the right to terminate access to Vinfolio services and websites at any time. If this happens Vinfolio will notify User. In such event: 1) User is no longer authorized to access Vinfolio; 2) User will continue to be subject to and bound by all restrictions imposed on User by these Terms; and 3) All licenses granted by User and all disclaimers by Vinfolio and limitations of Vinfolio's liability set out in these Terms or elsewhere on Vinfolio's websites or documentation will survive.
Termination by User
If User is dissatisfied with any portion of the service, or with any of these Terms, User's sole and exclusive remedy is to discontinue using the website. This Agreement is effective until terminated by either party.
Legal age requirement
Wines may be sold and delivered only to a person who is at least 21 years old. Customer represents that: (1) Customer is at least 21 years old; and (2) the person to whom any wine will be delivered is also 21 years old. At the time of delivery, any domestic U.S. shipment arranged by Vinfolio containing an alcohol beverage product will require the signature of an adult possessing identification proving he or she is at least 21 years old. Further U.S. law requires that no delivery shall be made to a visibly intoxicated person. Shipping to a BUSINESS ADDRESS is strongly recommended.
Confirmation of wine purchases
For wine currently available for purchase, Customer may order online, over the phone, or by sending an email. However, no order shall be considered confirmed until Customer has fully paid by credit card (or made other arrangements) and received an email or other written confirmation.
When title (ownership) passes from Vinfolio to Customer
Title (ownership) of a wine purchase is transferred from Vinfolio to Customer in California when the wine has physically arrived and has been fulfilled to Customer's account by warehouse operations. "Fulfilled" means that the ownership transfer has been recorded in Vinfolio's accounting system and that the wine now appears as received in Customer's VinCellar account. Customer's wine purchase may still reside in Vinfolio's warehouse in storage (the default scenario if shipping instructions were not provided at the time of order) or it may be awaiting shipment, pick-up, or delivery. Please note: Unless Customer has already obtained wine insurance coverage through his/her insurer or elects optional insurance from Vinfolio pursuant to the Wine Storage Section, paragraph ix below, CUSTOMER WINE IS NOT INSURED ONCE IT IS FULFILLED.
For wine not currently available to purchase, Customer may place quote requests online or by calling a Vinfolio Wine Specialist. Such requests by their nature may not be able to be satisfied if the wine cannot be located. If Vinfolio locates the wine, Vinfolio will contact Customer with details on price, bottle sizes, and quantity available for purchase. Vinfolio reserves the right to impose a minimum purchase quantity for any single wine purchased due to requirements imposed by suppliers.
Note that the status of an order or quote request is always available via the My Account page of the Vinfolio website or by calling Customer Service at 1-800-969-1961.
Order and purchase cancellation
Orders cancelled prior to title passing to Customer will be charged a 10% fee on the value of a cancelled order. If title has already been transferred to Customer (including to Customer's storage account), a purchase is not cancellable. In addition, purchases made in response to quote requests are cancellable solely at Vinfolio's discretion even if a request to cancel the sale has been made prior to title passing to Customer (as such wine may have been purchased by Vinfolio specifically for the Customer).
Pre-arrivals and futures purchases
Many of the wines sold by Vinfolio are offered on a pre-arrivals or futures basis. This means that Vinfolio is not yet in physical possession of the wine at the time it is sold to Customer, even though Vinfolio has a purchase commitment with a supplier that matches its sale to Customer. Most wines normally arrive within a few months of the purchase with some notable exceptions such as newly offered Bordeaux futures which may arrive as much as 2-3 years after they are initially offered. Upon the arrival of the wine and a satisfactory inspection by Vinfolio, Vinfolio will update the order status automatically and trigger an email notification to Customer.
The estimated time for a pre-arrival wine to arrive is displayed on the website when ordering. The time period indicated represents our best estimate based on information provided to us by our suppliers at the time of Vinfolio's purchase or subsequently. Occasionally, the original estimate may be extended based on new information we receive. We understand this can be frustrating but Vinfolio does not control all variables which affect timing of delivery. For example, a producer may defer a release beyond its original anticipated date. Please be assured that delivery of your wine is guaranteed (see our guarantee of pre-arrival delivery). However, Vinfolio shall not be liable for Customer expenses caused by delivery delays (e.g., credit card finance charges) as no promise of delivery by a given date can be made with certainty.
Guarantee of pre-arrival delivery
It may occur that a supplier of Vinfolio is unable to deliver the quantity or bottle sizes originally sold to Vinfolio which it has then sold to Customer. From the date such a supplier default is determined, Vinfolio guarantees it will attempt to repurchase the wine from another source, including at its own greater cost (up to 25% over the retail price paid by Customer) to fulfill its commitment to Customer. If after three months from initiating its search, Vinfolio has not purchased the wine from another source, Vinfolio will refund the purchase price plus 25% (net of any applicable sales tax) which shall complete its obligation to Customer. If, however, Customer wishes to cancel the order prior to the foregoing three-month period without waiting for a replacement to be found, the refund will be for the original amount paid (i.e., without any premium added or cancellation fee applied). This guarantee does not apply to delays in pre-arrival deliveries as expected arrival dates provided at the time of purchase are only Vinfolio's best estimates.
While Vinfolio shall make a diligent effort (including physical inspection) to assess the condition of any wine it sells, it is not possible to know the complete provenance of every wine, especially older vintages. However, Vinfolio's wine guarantee and returns policy provides you with protection for your purchase. In addition, Vinfolio will, upon request, share the known information on provenance and condition with Customer as a consideration in Customer's decision to purchase a wine.
Wine guarantee and returns
If you are not satisfied with your purchase of fine wine from us, or we have made an error with your order, please email us immediately at email@example.com explaining the reasons for your dissatisfaction. Each situation will be reviewed on an individual basis in light of facts and circumstances of that case and resolved promptly. Other than for Vinfolio errors, we generally cannot accept a return if title has been transferred to you for longer than 90 days because the passage of time generally limits our ability to recover credit from our supplier and we have no way of verifying your storage conditions.
Note that we may ask you to return questionable bottles (including both opened and unopened ones) to us for evaluation and for possible return to our supplier. Such bottles must have the Vinfolio-generated barcode label attached as proof that the wine came from us. Should we accept responsibility (in our sole discretion), we will either exchange bottle(s) or issue a credit towards future purchases (including round-trip shipping charges). Set forth below are examples of both valid and invalid reasons for returning wine, which are subject to Vinfolio's investigation, review and final evaluation of the relevant facts and circumstances regarding a particular request for return.
Valid reasons for return
* Corked or flawed wine. The winery, not Vinfolio, is the source of this problem but we understand it can be disappointing.
* Wrong wine was sent (e.g., different vintage than ordered)
* Bottle condition upon arrival was not consistent with our inspection guidelines
* Wine is leaking upon arrival, spoiled or "cooked" (only if it was shipped in accordance with our shipping policy; we do not guarantee condition if you chose to override our shipping policy)
* Shipper errors - we'll file a claim against the shipper
Invalid reasons for return
* You decide you don't want the wine after title has transferred to you but before the wine has been shipped from our warehouse.
* The wine is showing signs of damage after leaving our possession for reasons including without limitation adverse weather conditions during shipment (where you have overridden our shipping policy or for any international shipment), delays caused by failed delivery attempts through no fault of the shipper, improper storage, or other forms of mistreatment.
* You don't like the wine.
* You received a gift from someone via Vinfolio and want to exchange it.
Invalid reasons per California law
* You overbought and want to return excess wine.
Sales tax policy
Vinfolio will charge sales tax on products purchased and shipped, delivered or otherwise transferred to a Customer within the state of California. Sales tax shall be charged at the time of purchase. As sales tax rates change periodically, Vinfolio may be required to charge additional sales tax if the tax rate for purchases has changed between the order date and the fulfillment date. Delivery address (or the intended ultimate shipping zip code if not being shipped immediately) shall determine the tax rate charged to an order. Regardless of mechanism, goods delivered to an address within a county where Vinfolio conducts business (including delivery service) shall be taxed at the rate in effect for that county (and in some cases, cities within a county). Vinfolio currently conducts business in the following California counties and will collect tax on orders delivered to each county/city at the corresponding rate:
Contra Costa 8.250%
San Rafael 8.250%
San Francisco 8.500%
San Mateo 8.250%
Santa Clara 8.250%
Santa Rosa 8.000%
Goods delivered by common carrier to an address within a county where Vinfolio does not conduct business shall be taxed at the State Base Tax Rate, currently 7.25%. Unless Vinfolio begins operating in another state or is required by terms of any state permit prior to shipment, orders shipped to states where Vinfolio does not conduct business shall not be charged sales tax.
Vinfolio will not charge sales tax on goods purchased and stored at a Vinfolio facility that are specified for delivery to an out-of-state address and intended for use and consumption solely outside the state of California. Customer agrees that changing a non-California delivery address to a California delivery address at any time prior to shipment shall result in the charge of California sales tax at a rate determined by Vinfolio's then current Sales Tax Policy. Customer further agrees that Vinfolio cannot refund sales taxes paid on goods originally intended for delivery within California but subsequently changed to a non-California address.
Vinfolio will not charge sales tax on freight charges paid by Customers. For orders with ship-to addresses within California, Vinfolio is required to charge sales tax on handling fees and packaging materials.
Price changes and availability
All prices associated with wine offers to Customer, whether through the website, email, or other means, are subject to change without notice. Availability of wine is subject to Vinfolio purchased stock or such lesser amount as Vinfolio may decide. Vinfolio is not responsible for typographical errors or technology malfunctions and reserves the right to correct any errors in pricing without penalty to Vinfolio or Customer. Vinfolio also reserves the right to set minimum and maximum purchase quantities and to rescind orders which violate such rules without penalty.
Occasionally, computer system issues, human errors, process faults, or other causes result in unintentional offers appearing on our website. Vinfolio reserves the right to correct such unintentional offers and to rescind any orders which may have been placed that are associated with them by refunding the Customer’s money plus 5%. Unintentional offers include, without limitation, offers of wine for sale that Vinfolio does not have in stock or on pre-arrival, offers at incorrect prices and misestimates of pre-arrival dates.
Should Vinfolio reduce its price on any wine in a confirmed order within 14 calendar days of the order confirmation date, you may contact Customer Service at 1-800-969-1961 to request a refund or credit of the difference between the price you were charged and the current selling price. To receive the refund or credit, you must contact Vinfolio within 14 calendar days of the order confirmation date. No credits or refunds shall apply to items discounted through use of promotional discounts.
Vinfolio maintains an active California wholesale license. If you have a California wine retail license and wish to purchase wine from us, please contact Customer Service so that we obtain necessary information to set up your account appropriately.
Disclaimers/Limitation of liability
Customer purchase and use of any product from Vinfolio is at Customer's risk. To the extent fully permitted by law, neither Vinfolio nor any other party involved in creating, producing, or delivering products is liable for any direct, indirect, incidental, consequential or punitive damages arising out of Customer access to, or use of, Vinfolio products or goods purchased through use of Vinfolio's service. Unless expressly granted by these Terms, all goods are sold "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Shipping, Pickup, and Delivery
Interstate shipping and alternatives
Due to direct shipping laws and regulations, Vinfolio may be unable to facilitate the shipment of wine by Customers to certain states. The regulations and court decisions affecting the interstate shipment of wine are in constant flux. We encourage consumers interested in their freedom to purchase wine from any state to sign up on the consumer mailing list of the Specialty Wine Retailers Association, a trade group (of which Vinfolio is a member) that is intent on ensuring consumer access to a national wine market.
Customer may specify a ship-to address in any state. The Customer is responsible for importation of their wine into the jurisdiction of their shipping address and promises and agrees to indemnify, defend and hold Vinfolio harmless from and against any and all claims, liabilities, and expenses (including taxes, interest, penalties, and attorney fees and amounts paid in investigation, defending or settling any of the foregoing) arising out of or in connection with: (A ) any act by or omission of Customer, their agents or employees, or allegations made upon such acts or omissions, relating to or affecting the wine sold to and shipped on behalf of the Customer by Vinfolio in accordance with these Terms and Conditions; (B ) any inaccuracy of any representation made by Customer in connection with the transactions contemplated by these Terms and Conditions; (C ) any claims brought or asserted by any third party against Customer for any wine sold by Vinfolio to the Customer and shipped in accordance with the Customer’s instructions and per these Terms and Conditions.
Vinfolio makes no representation as to the rights of anyone to import wine into any state outside of California. Customer authorizes Vinfolio to act on Customer's behalf to engage a common carrier to deliver the order. Contact Customer Service for more information about shipping wine to different states, international destinations or shipping alternatives.
Vinfolio ships wine to most countries using various specialized carriers and a copy of the purchase invoice is required to be provided to carriers for use in determining foreign taxes and duties. If wine not purchased from Vinfolio is being shipped from storage, Vinfolio will provide a written estimate of fair market value to the carrier.
Vinfolio charges for air freight but is not involved in the collection of foreign duties, taxes, and surcharges which must be paid separately by Customer to the relevant party before the wine is released to Customer. These charges vary widely around the world, are sometimes onerous (e.g., reaching over 100% of value), and are often based on complex rules. Therefore, all costs related to international shipping are estimates only (see shipping costs) and are always the responsibility of the Customer.
Please note that wine shipped internationally is not covered by Vinfolio's shipping policy and this service is provided solely at Customer's own risk. In particular, the precise timing of deliveries (given the need to clear Customs in other countries) and the local storage conditions while awaiting Customs clearance are completely outside of Vinfolio's control.
Customer is responsible for all carrier fees, duties, and customs charges incurred in shipping purchases to Customer's desired shipping address. To the extent that Vinfolio provides estimates of shipping, duties, and custom charges, these should be considered to be estimates only. Upon request only, original wooden boxes associated with a purchase (if any) may be shipped separately from bottles by common carrier for an additional fee.
Care must be taken when shipping wine in adverse weather conditions. High temperatures may cause wine bottles to leak or extreme cold can freeze wine during shipment.
Vinfolio's shipping policy is designed to protect your wine in transit. By initiating a shipment request through Vinfolio, Customer accepts this policy. Customer may override this policy (e.g., by choosing to ship in adverse weather conditions or by a slower delivery service than is recommended) but in doing so, Customer accepts all responsibility for that shipment through whatever weather conditions may occur during that shipment and agrees that Vinfolio will not be responsible for, and will not replace, wine that is damaged by adverse weather conditions during such shipment.
Free local saver delivery for wine purchases
Wine purchased from Vinfolio qualifies for free local delivery provided 12 or more purchased bottles are being delivered at once on the weekly route day for the delivery address provided (subject to capacity). This benefit will expire six months after arrival of the wine at Vinfolio as the wine will then be considered "delivered" to paid storage at that time or if Customer (or his agent) fails to meet the driver within 15 minutes of a scheduled appointment time.
Inventorying of wine picked up
Please read Manifesting of wine to be added to storage
Scheduling pickups and deliveries
Wine may be picked up or delivered upon Customer request only. Vinfolio shall not be responsible for typographical or clerical errors contained in instructions sent by Customer, whether by email (the preferred method), fax or letter, or for transcription errors for verbally transmitted instructions.
Vinfolio offers a range of pick-up services solely within its service area (see Pick-up and drop-off info).
Paid Vinfolio pickups and deliveries
Vinfolio's paid pickup and delivery service includes up to 15 minutes of total stationary time. Stationary time includes loading, unloading, waiting and any other activity initiated or caused by Customer action or inaction. Additional time is charged at an hourly rate of $60.00 per hour. A failure to meet the driver within 15 minutes of a scheduled appointment time is considered a "No Show" and is subject to a cancellation fee equal to the previously communicated full charge or estimated charge for the scheduled service.
Non-Vinfolio pickups and deliveries
Terms for pickups and deliveries by non-Vinfolio service providers are subject to the carrier's terms of service and are available by contacting Customer Service. Terms, restrictions and guidelines for shipment to states other than California are governed by the Interstate shipping and alternatives section above.
Vinfolio shall insure the value of goods transported to and from Customer, both domestically and internationally, up to $750,000 per shipment (at no charge) provided the shipment is arranged by Vinfolio. Additional coverage is available upon request for an additional charge. Coverage is limited to the lower of the declared value or fair market value of the goods in question. Vinfolio will not be liable for any damage caused by acts of God, seizure or other acts of civil or military authority, insurrection, riot, strike, or enemies of the government; loss or damage resulting from inadequate packaging or wear and tear, deterioration or from any other cause beyond the reasonable control of Vinfolio.
i. Legal restrictions
Customer is solely responsible for making a decision to sell wine. Wine sold by nonlicensed California consumers directly to Vinfolio must be compliant with Section 23104.6 of the California ABC Act. This section of the ABC Act does not apply to purchases made from nonlicensed persons outside of California as such purchases are completed outside of California and validly imported into California using Vinfolio's California state import license. Customer understands that Vinfolio is the purchaser in all circumstances of Customer wine being sold and that Vinfolio's willingness to accept wine for sale is subject to a final inspection of bottles according to our Inspection Guidelines among other conditions. Vinfolio reserves the right not to purchase any wine for any reason. Customer will incur normal storage fees for rejected wine if shipping arrangements are not made by the Customer in a timely manner to return the wine to the Customer.
All sales to Vinfolio require Customer to sign a separate wine sales agreement with Vinfolio, prior to wine being transferred to Vinfolio, whose terms shall represent the entire sales agreement between Customer and Vinfolio. Among other terms, Customer must represent he/she owns the wine being sold and that all bottles are in excellent condition.
ii. Transfer of wine to Vinfolio
Once a sales agreement has been signed, bottles must be sent to Vinfolio's storage facility at Customer's expense; any rejected bottles will be returned to Customer at Customer's expense. Vinfolio's customer service staff is available to assist in making arrangements for safe transfer.
Once the requirements for payment of a particular sale have been met, checks or credits are issued within two business days or as specified by the terms of the sales agreement. Credits do not expire and may be applied to any future Vinfolio purchases (products or services).
i. Manifesting of wine to be added to storage
CUSTOMER SHIPPING OR DELIVERY MANIFESTS PROVIDED TO VINFOLIO IN ADVANCE OF VINFOLIO CONDUCTING ITS OWN INVENTORY, WHETHER PREPARED BY CUSTOMER OR AN AUTHORIZED REPRESENTATIVE (INCLUDING RETAIL STORES, WINERIES, AUCTION HOUSES OR OTHERS), ARE CONSIDERED ADVISORY ONLY, AS VINFOLIO WILL ONLY ACKNOWLEDGE RECEIPT OF SPECIFIC WINES, VINTAGES, QUANTITIES, AND BOTTLE SIZES AFTER AN INVENTORY BY VINFOLIO IS PERFORMED; NO ON-THE-SPOT ACKNOWLEDGEMENT OF THE ACTUAL CONTENTS OF BOXES UPON PICKUP OR INITIAL RECEIPT CAN BE PROVIDED.
VINFOLIO ACCEPTS NO LIABILITY FOR DISCREPANCIES BETWEEN CUSTOMER OR THIRD PARTY MANIFESTS, RECORDS OR BELIEFS AND VINFOLIO'S ACTUAL PHYSICAL INVENTORY. IN THE CASE OF AN UNRESOLVED DISCREPANCY, CUSTOMER AGREES VINFOLIO'S INVENTORY RESULT SHALL PREVAIL.
The definitive record of Vinfolio's inventory process of Customer wine to be added to storage shall be reflected in the Storage Activity report which is updated daily and accessible online by Customer in the My Account area of the Vinfolio site (after signing in). Should Customer believe there to be a discrepancy in what he/she believes was provided to Vinfolio and what is reflected on this report, Customer must submit an explanation detailing the discrepancy in writing within 45 days of the pick-up/receipt date by Vinfolio. An investigation will be commenced in an attempt to resolve the matter promptly.
Any customer with concerns on transferring wine to storage under the above terms should either contact Customer Service to gain comfort with our procedures and security precautions; consider Vinfolio's on-site inventory service (for a separate fee) where Customer might also supervise the inventory process in person; or decline to use Vinfolio's storage service.
Vinfolio's storage service is managed on behalf of Customer. This approach requires that any wine presented for storage at a Vinfolio facility be inventoried according to Vinfolio's procedures. By default, all wine (including wine in original wooden cases) will be inventoried and bottle and case barcode labels applied. Certain limited exceptions may be made at Vinfolio’s sole discretion (such as banded DRC cases). If an exception is made, the contents of a carton will be assumed to be the wine, bottle size, and quantity as marked on the box for purposes of adding the wine to Customer's VinCellar account. Vinfolio accepts no responsibility for the actual contents of wine in any such unopened cartons.
iii. Cost of adding and withdrawing wine
There is no charge to add or remove wine to a storage account except as described in the following sentence. For wine that was not purchased from or through Vinfolio, but which enters Vinfolio’s storage on or after January 1, 2008 and is pulled out of storage within 6 months of the initial entry date, there will be a early exit fee of $2.50 per bottle of any size.
iv. Ownership & tax paid representation
Customer represents and warrants that it is the sole owner or otherwise is legally entitled to submit wine to Vinfolio for the provision of Vinfolio's services described hereunder; and all wine placed in the custody of Vinfolio is not subject to any encumbrance or lien that may prevent or restrict Customer from submitting the wine to Vinfolio for the provision of services described hereunder. Customer represents and warrants that all wine presented for storage is in out-of-bond, i.e. "tax-paid" status, and that Customer has obtained any and all necessary permits, if any, to store such wine at Vinfolio's storage facility.
v. Billing metrics
Storage is billed monthly and is based on the average daily balance of standard 9.0L case equivalents stored with Vinfolio. The monthly average balance will be rounded up to the nearest full-case equivalent. Wine withdrawn or deposited at any time during a day is charged for a full day. Storage is billed in arrears and is considered due on the 5th day of each following month.
vi. Free storage
Vinfolio purchases automatically receive six months of free storage measured from the date of fulfillment to customer’s storage carton. Customer may track this benefit in the Delivery Credit Report, accessible online by Customer in the My Account area of the Vinfolio site (after signing in).
vii. Purchase of storage units
Wine not subject to free storage benefits is paid for with storage units. Each storage unit entitles Customer to store one standard case of 9.0L (12 x 750ml, 6 x 1.5L, etc.) wine for one month plus any required inventorying and handling services (in/out services) except for early exit fees as described in cost of adding and withdrawing wine. Customers may obtain discounts on storage units by purchasing them in advance and keeping such units on account. Pricing for storage units is governed by the quantity purchased in a single transaction based on the price list then in effect.
Units are non-transferable, non-refundable and do not expire. The value of a storage unit may not be used to pay for other products and services purchased from Vinfolio. Storage units on account will be decremented in arrears on the 5th of every month for the previous month's usage and the remaining balance will appear on Customer's monthly online billing statement. Should Customer have insufficient storage units on account, the credit card of record will be charged for the minimum purchase amount (15 storage units) to satisfy the open balance.
viii. Storage referral program
Individuals who refer new storage customers are given free storage units equal to 10% of the storage units initially purchased by the referred party. To qualify for this benefit, the new Customer or the referring individual must inform Vinfolio staff prior to the initial storage unit purchase being made that it is based on a referral and provide the name of the referring individual.
ix. Carton replacement
Vinfolio may, at its sole discretion, repack wine into Vinfolio storage cartons if such wine is picked up or arrives in Styrofoam shippers or in cartons that are faltering or damaged. Customer will be charged for materials based on Vinfolio’s current carton price schedule.
x. Optional storage insurance plan from Vinfolio
BY DEFAULT, CUSTOMER WINE IS NOT INSURED WHILE IN VINFOLIO STORAGE.
Vinfolio's optional storage insurance plan offers protection against loss or damage to wine attributable to certain expressly defined causes while being stored with Vinfolio. The limits of such protection, as expressly described below, are based solely on the aggregate declared value of Customer's wine in storage with Vinfolio. Declared value shall be equal to the aggregate cash value as stated by Customer at the time of initial storage of the wine with Vinfolio or subsequently updated by a new storage insurance plan option form.
Wine shall be protected solely against loss, damage or loss of use resulting from breakage, theft, fire or water damage where such water damage arises from non-natural causes, while stored with Vinfolio. Notwithstanding anything contained in this Agreement to the contrary, the storage insurance plan will not provide protection for loss or damage caused by acts of God, seizure or other acts of civil or military authority, insurrection, riot, strike, or enemies of the government; loss or damage resulting from inadequate packaging or wear and tear prior to receipt of goods by Vinfolio, deterioration, flooding as a result of natural disasters or from any other cause beyond the reasonable control of Vinfolio. Customer agrees that it is Customer's sole responsibility to ensure that the stated value is current. If Customer selects the storage insurance plan, Customer shall pay Vinfolio, on a monthly basis in arrears, a fee equal to 8.33 basis points (.0833%), equivalent to 1% annually, of the declared value of Customer's wine as stated on the latest storage insurance plan option form for wine held in storage with Vinfolio as consideration for extension of Vinfolio's storage insurance plan. VINFOLIO IS A BAILEE OF THE GOODS AND IS NOT AN INSURER OF THE GOODS STORED WITH IT.
If Customer fails to render any payment for the storage insurance plan as described herein by the date due, then all protection provided by Vinfolio for loss or damage as described herein shall cease, and Vinfolio shall have no liability whatsoever for any losses or damage suffered by Customer thereafter, except as described in the "Vinfolio liability when no insurance procured by Customer" section of Vinfolio's then current Terms.
xi. Third-party storage insurance alternative
As another option, Vinfolio recommends Fireman's Fund and AIG, to insure Customer wine, whether it is stored at Vinfolio's warehouse or at other domestic U.S. locations such as Customer's home (AIG also covers international locations). To request more information directly from Fireman's Fund, click here , or you may also contact AIG directly at (415) 836-2790 or e-mail Jennifer.Wolf@aig.com .
xii. Vinfolio liability when no insurance procured by Customer
CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT SHOULD HE/SHE NOT UTILIZE VINFOLIO'S STORAGE INSURANCE PLAN OR A THIRD PARTY ALTERNATIVE TO INSURE HIS/HER WINE, THEN HE/SHE HAS NO PROTECTION AGAINST LOSS OR DAMAGE TO WINE STORED WITH VINFOLIO EXCEPT AS EXPRESSLY DESCRIBED BELOW.
In the event that Customer does not insure his/her wine in a Vinfolio storage location, then Vinfolio's responsibility for any loss or damage to Customer's wine, including, but not limited to, direct, indirect, special or consequential loss or damage while in the custody of Vinfolio, shall be limited to Vinfolio's gross negligence or willful misconduct. Vinfolio will not be liable for any damage caused to Customer's goods by Customer's failure or omission to comply with the obligations set forth herein. Notwithstanding anything contained in this Agreement to the contrary, Vinfolio shall provide no protection for loss or damage caused by acts of God, seizure or other acts of civil or military authority, insurrection, riot, strike, terrorists or enemies of the government; loss or damage resulting from inadequate packaging or wear and tear, deterioration, flooding, insect or rodent infestation; loss or damage due to contamination, cork-fly, deterioration, discoloration, inherent vice, ullage or quality of the wine for anything that is not directly caused by Vinfolio’s gross negligence or willful misconduct.
i. Location where service performed
Service may be performed in all 50 U.S. states or internationally by special request at different rates. Inventory services performed at a non-Vinfolio location require minimum bottles quantities based on whether they are located within Vinfolio's local service area or outside the local service area (but still domestic U.S.). Vinfolio's local service area includes the San Francisco Bay area counties of Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano and Sonoma. To review current bottle minimums and related Inventory Service fees, click here to be redirected.
ii. Terms of site visits
Site visits require a minimum window of 6 consecutive hours or such time as may be required to sufficiently inventory the contents of a cellar, whichever is less. Service must be scheduled at least one week in advance. Failing to provide access to the storage location within 15 minutes of the scheduled start time constitutes a Customer "No Show" and is subject to the minimum charge and appointment rescheduling. On-site services include 30 minutes of set-up and 15 minutes clean-up time. Additional time in excess of this budgeted time already included in the fees, including waiting for access to the storage area, preparation required to inventory, reorganization, movement of items, rack or Customer hardware set-up, repeated disruptions, requests to temporarily vacate the premises and any other non-inventory related use of time (when in excess of the budgeted time) will be billed at $60.00 per hour per person if more than 2.5 hours per 1,000 bottles is spent. The storage site must be closed to traffic including children, pets, and other potential distractions. Additional requirements include:
* Access to 110V power (or as designated for international locations) within 100 feet of the storage site
* A cleared 10' by 10' space for table set-up within 10 feet of the storage site
* An access path to the facility cleared of all debris and obstructions
* Lighting sufficient to read labels
* Access to restroom facilities
* Direct access to the site for the loading and unloading of equipment
iii. Barcode labeling
Inventory services include barcode labeling at the time of inventory. Customer may elect to have barcode labels applied to bottles, have labels printed but not applied to bottles or have no labels printed. If Customer does not elect to have labels printed at the time of inventorying, future barcode labeling will be available at Vinfolio's then current charge. Case labels listing a case number and contents of the case are also provided as needed.
iv. Availability of Customer data in VinCellar
Customer's collection information will be added to Customer's VinCellar account and made available for Customer access within two business days of inventory completion. Customer will be contacted by phone or email when the account is ready to use. Label images may take up to a month to appear in the Customer's VinCellar account.
i. Collection building
Customer acknowledges that collection-building services offered by Vinfolio are advisory only and that Customer is under no obligation to follow purchase recommendations of Vinfolio staff, nor does Vinfolio guarantee Customer’s satisfaction or value appreciation with a particular wine that has been recommended. Any wine purchased on behalf of a Customer requires Customer authorization (which may include granting Vinfolio staff preauthorization within specific parameters to make purchases when Customer is not reachable).
Customer acknowledges that valuation services offered by Vinfolio are advisory only. Customer hereby agrees that neither Vinfolio, nor its employees, contractors, officers, directors or third-party content providers shall be liable for errors, omissions, damages or losses arising from the valuation of any wines valued in any written valuation report prepared for Customer. To the extent the wine was not personally inspected by a Vinfolio representative, Customer agrees that inspection was unnecessary or not practical. Other limiting conditions and assumptions used in preparing each valuation are stated in the valuation report.
iii. Personal Cellar Management
Customer acknowledges that personal cellar managers will recommend sources for buying and selling wine, of which Vinfolio may be an option, and that Customer is under no obligation to follow purchase or sale recommendations. Personal cellar managers offer an independent opinion and receive no financial incentive if Customer chooses to buy or sell through Vinfolio.
The specific services offered under the Personal Cellar Management program can include any of the services described on our website (available here ), or may include other services as agreed to jointly by Vinfolio and the Customer.
b ) Booking Personal Cellar Management days
Customer acknowledges that, unless otherwise agreed to in writing, Personal Cellar Management services are contracted for on a monthly basis, with a pre-specified number of days to be booked and consumed during each month of the agreement. Onsite services for local service area customers (see definition below) are booked in either full or half day increments. Onsite services for customers outside Vinfolio’s local service area are booked in full day increments only, and require travel time to the customer’s location.
Customer agrees that each month’s days will be booked in advance and must be consumed on a use-or-lose basis for a given month. If a customer fails to schedule their commitment days or cancels pre-scheduled days without rebooking before the 15th of a month, Customer agrees that days will be charged against their account.
Customer agrees that if the Customer desires to reschedule a booked day, advance notice of a least 5 business days is required, otherwise services will be charged as scheduled. Vinfolio will make a good faith effort to accommodate requests for rescheduled days, but may be constrained by commitments to other customers; Vinfolio cannot guarantee that such rescheduling requests will be honored. At Vinfolio’s sole discretion, days not rescheduled in a specific month may be refunded or rescheduled to a later month. Any travel expense or change fees incurred as a result of a rebooking will be billed to the Customer as part of the normal monthly billing cycle.
Personal Cellar Management services will be charged to the Customer on a monthly basis, no later than the 5th business day of the following month. Rates for the Personal Cellar Management program are available by viewing Vinfolio’s website here .
c) Location where service performed
The Personal Cellar Management services may be performed in all 50 states or internationally by special request at different rates. Personal Cellar Management services are performed at both the Customer’s specified location and Vinfolio offices. Vinfolio’s local service area includes the San Francisco Bay Area counties of Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma. Travel to Customer sites within Vinfolio’s service is free of charge; travel outside Vinfolio’s local service area will be billed to the Customer at cost.
d) Vinfolio personnel assigned to Personal Cellar Management accounts
Customer acknowledges that agreements to perform Personal Cellar Management services are between the Customer and Vinfolio, and that Vinfolio has the right to change personnel assigned to a specific account for any reason including, but without limitation, Customer requests and employee performance.
Billing and Payment
i. Statements of services purchased
A statement detailing the services purchased during the previous month will be available online for Customer review by the 5th of each month. Customer must notify Vinfolio of any disputed charges within 30 days. Disputed cash charges resolved in favor of Customer will appear as a credit on the following statement or, if no balance is due, will be returned in the form of a check. Disputes resolved in favor of Customer involving credit from selling wine through Vinfolio shall remain on account and applied to future purchases.
ii. Billing & unpaid balances
Billing for services purchased from Vinfolio will occur monthly and will be charged to the credit card of record on or before the 5th of each month in arrears. If Customer fails to pay when any service charge is due and payable hereunder, then interest at the rate of 1.5% per month shall accrue on such unpaid charge from and after the date on which such charge shall be due and payable, and such interest, together with a late charge of $25.00, shall be paid at the time of payment of the delinquent sum. Payments will be applied first to late charges and/or the oldest services charges due.
If Vinfolio agrees to accept a Customer check and it is dishonored for any reason, Customer shall pay an additional charge of $50.00 and all future payments shall be made by credit card, money order, bank or cashier's check.
The value of pre-paid storage units will automatically apply to any outstanding storage service charges on Customer's monthly bill. Storage service balances remaining after all prepaid storage units have been depleted shall be charged to Customer's credit card (subject to the minimum purchase requirement).
In the event that Customer elects to withdraw substantially all wine from a storage account, Vinfolio at its discretion may require that Customer pay all unpaid charges, up to and including storage for the date of withdrawal (including any applicable early exit fees), prior to shipment, delivery or pickup. Customer acknowledges and agrees that such payment may be made by charging his or her credit card.
iii. Warehouseman's lien
In the event that Customer fails to pay when due any charge due and payable hereunder, Vinfolio, at its sole discretion, may deny Customer access to Customer's wine being stored at a Vinfolio facility, and withhold all services hereunder, until such indebtedness is fully cured. Any account overdue by 30 or more days will be locked and the items stored shall not be made available for withdrawal until the account is paid in full. Customer agrees that Vinfolio may sell items from a storage account to satisfy storage or other indebtedness if such indebtedness remains uncured 60 days after Vinfolio notifies Customer of the balance due. The proceeds of such sale shall first be applied to any indebtedness owing to Vinfolio and next to any costs and expenses incurred with respect to the goods, the sale, and any efforts to collect such indebtedness. Any excess shall be remitted to Customer.
Wine prices and service rates are subject to change at any time, as may be posted on our website.
Customer should assume that everything seen or read on this website (or other Vinfolio-owned websites), received through related services, or downloaded from Vinfolio servers, is protected by copyright unless otherwise stated and may only be used according to these Terms. Vinfolio does not warrant or represent that Customer use of materials displayed on this website will not infringe rights of third parties that are not owned by or affiliated with Vinfolio. The use of these materials by Customer, or anyone else authorized by Customer, is prohibited unless specifically permitted by these Terms. Any unauthorized use of such materials may violate copyright laws, trademark laws, the laws of privacy and publicity, as well as other communications regulations and statutes.
The trademarks, logos, and service marks (collectively the "Trademarks") displayed on this website are registered and unregistered trademarks of Vinfolio, Inc., its affiliates and others. Customer misuse of the Trademarks displayed on this website, or any other use of content displayed on or included as part of the website, except as provided herein, is strictly prohibited. Nothing contained on this website should be construed as granting any license or right to use any Trademark displayed on this website without the written permission of Vinfolio or such third party that may own the Trademark.
Customer agrees to release Vinfolio from any liability for any damage, injury or loss, monetary or otherwise that Customer incurs as a result of either Customer's or another party's use of Vinfolio website, services, products or third party references, except as expressly described herein. Vinfolio expressly disclaims any liability for any damage, injury or loss, monetary or otherwise, that Customer incurs through reliance upon the accuracy and completeness of information provided by Vinfolio's website, Vinfolio employees, contractors, third party content providers, licensors or information attendant to or included in any of the services provided by Vinfolio.
Suitability and fitness
Customer acknowledges and agrees that Customer has made his or her own inquiries as to the suitability and fitness of Vinfolio for the purposes of providing the services described herein, and that Customer has not relied on any representations made by Vinfolio or its representatives other than those described in this Agreement.
Modification of terms
Vinfolio may at any time revise these Terms by updating the same at its website(s). When Vinfolio updates these Terms, Vinfolio will also revise the "Last updated" date and notify Customer by email that the Terms have changed and what changes were made via an online user Forum on Vinfolio’s site (click here). Customer is bound by any such revisions and should therefore review changes highlighted by such notices carefully.
This Agreement is governed by and construed in accordance with the laws of the United States of America and the State of California without regard to its conflicts of law provisions. Use of this website is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this paragraph. If Customer uses this website from other locations, Customer is responsible for compliance with local laws and regulations. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Customer hereby agrees that any cause of action arising out of or related to this website or its service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
This Agreement supersedes all prior or contemporaneous terms or conditions, oral or written, between Customer and Vinfolio with regard to use of this website or Vinfolio services. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Customer hereby agrees to defend, indemnify and hold harmless Vinfolio and all of its officers, directors, owners, employees, agents, information providers, affiliates, partners, licensors and assigns (each a "Vinfolio Party") against any and all claims, damages, costs, fines, penalties, liabilities, losses, attorneys' and other professional fees and disbursements, suffered, incurred by, or asserted against any Vinfolio Party, including any amounts incurred or paid in settlement or any judgment of any action, suit, or proceeding brought under any statute, at common law, or otherwise, which arises under or in connection with:
* Customer use of Vinfolio websites, the VinCellar software, or Vinfolio services;
* Customer purchase of goods pursuant to this Agreement;
* Customer shipments or valuation or goods for shipping purposes;
* Valuation or sustained valuation of goods purchased;
* Any use or alleged use of Customer accounts or passwords by any person, whether or not authorized by Customer;
* The content, quality or performance of content that Customer submits to Vinfolio websites or the VinCellar software;
* User connection to Vinfolio websites;
* User violation of this Agreement; or
* User violation of the rights of any other person or entity, including without limitation intellectual property rights and rights of privacy and/or publicity
except to the extent that such liability is the direct result solely of Vinfolio's gross negligence or willful misconduct.
Vinfolio reserves the right, at Vinfolio's own expense, to assume the exclusive defense and control of any matter for which
Customer is obligated to indemnify a Vinfolio Party, and Customer agrees to cooperate with Vinfolio's defense of these matters at no cost to Vinfolio.
The foregoing obligations of Customer are hereinafter collectively referred to as "Indemnity Obligations." Indemnity Obligations shall survive, for a period of five (5) years, after the latest of a product sale or termination of Vinfolio's services under this Agreement or Customer's use of the VinCellar software. Customer agrees to promptly tender any payments due to any Vinfolio Party under or in respect of the Indemnity Obligations within five (5) business days following written demand by the Vinfolio Party.
Disclaimers/Limitation of liability
Customer use of and any browsing of Vinfolio’s website(s), related Internet services, and the VinCellar software is at Customer's risk. To the extent fully permitted by law, neither Vinfolio nor any other party involved in creating, producing, or delivering the website or the VinCellar software is or shall be liable for any direct, indirect, incidental, consequential or punitive damages arising out of Customer access to, or use of, the website, the VinCellar software, or related services. The material contained in this website may contain inaccuracies and errors. Vinfolio does not guarantee that the functional aspects of the website or the VinCellar software will be uninterrupted or error-free or that this website, the VinCellar software, or the server that provides them are free of viruses or other harmful components. The VinCellar software and everything on the website are provided to Customer "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Dispute resolution / Waiver of right to litigate in court
The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested. The other party will respond in writing with a statement of its position on, and recommended solution to, the dispute. If such dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to negotiate or arbitrate, remains unsettled following such negotiation, the matter shall be determined by arbitration in San Francisco, California, before a sole arbitrator, in accordance with the rules of the American Arbitration Association. The arbitrator shall allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing party, against the party who did not prevail. The parties hereby agree, however, that the arbitrator is not empowered to award damages in excess of those specified above and hereby expressly waive and forego any right to punitive, exemplary or similar damages in arbitration.
The parties hereby agree to have all disputes, claims or controversies arising out of or relating to this Agreement decided by the negotiation and arbitration procedures described above, and waive any rights they might possess to have those matters litigated in a court or jury trial. Each party acknowledges that if it refuses to submit to negotiation and arbitration after agreeing to this provision, it may be compelled to arbitrate under federal or state law. Furthermore, each party acknowledges that none of the foregoing shall limit the parties' rights as described in this Agreement. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this section, without breach of this arbitration provision.
Any notice given under this Agreement or pursuant to law must be in writing and will be sufficient if personally delivered, sent by regular, certified or registered mail, email or website posting by Vinfolio to this website. Notifications shall be sent to the physical or email address of record for Customer or, if to Vinfolio, to 1890 Bryant Street, Suite 208, San Francisco, CA 94110 or firstname.lastname@example.org. Notice deposited in the mail in the manner hereinabove described shall be effective from and after the expiration of three (3) days after it is so deposited; email and website notifications shall be effective from and after the expiration of twenty four (24) hours.
Privacy and security of personal information
This Agreement, together with any separate sale agreement(s) related to Vinfolio’s Selling Services, represents the entire and integrated Agreement for services provided by Vinfolio between the parties herein, and supersedes all prior negotiations, representations or Agreements, either written or oral. Any waiver of a right or duty afforded under this Agreement shall not be effective unless such waiver shall be in writing and signed by the party claimed to have given, consented to or suffered the waiver. This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of California. In the event that any court of competent jurisdiction determines that any provision of this Agreement is unlawful or unenforceable, each and all remaining provisions of this Agreement shall remain in full force and effect. This Agreement will bind and benefit Vinfolio and Customer, and their respective heirs, executors, administrators, successors, and permitted assigns.