Terms

STANDARD TERMS AND CONDITIONS

All sales, orders, and purchases are subject to the following standard terms and conditions which are expressly incorporated into each sale, order, purchase, and invoice:

1. Seller’s agreement to provide product to purchaser is expressly conditioned on purchaser’s assent to all the terms and conditions set forth herein.
2. All product is sold in California and title passes to purchaser in California. Seller makes no representation as to the legal right of anyone to ship or import wine into any state outside of California.
3. Purchaser authorizes Seller to act on purchaser’s behalf to engage a common carrier to deliver product to purchaser. Sales will be invoiced at prices in effect on the date of shipment, F.O.B. shipping origin, unless otherwise specified in writing by Seller. Purchaser shall reimburse Seller for shipping costs.
4. Seller will retain ownership of the product until payment in full is received. The transfer of ownership will occur upon receipt of full payment. Risk of loss will pass to purchaser upon Seller’s delivery of the product to the carrier.
5. Any tax or other government charge upon the sale or shipment of product sold to purchaser must be paid by purchaser.
6. Purchaser accepts the product “as-is” and “as available.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCT PURCHASED FROM SELLER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Purchaser agrees to inspect the product immediately upon arrival and all claims relating to quality, quantity, conditions of or damage to the product will be waived by purchaser unless made in writing within three days of arrival. No product may be returned without Seller’s prior written permission.
8. Seller will not be responsible for delay in delivery or failure to fill orders or other default where such has been caused by force majeure. In the event of any delay in shipment or non-performance caused by force majeure, Seller may, at its option and without liability, cancel all or any portion of its obligations to purchaser and/or extend any date upon which performance is due.
9. Under no circumstances will Seller be liable for any direct, indirect, special, incidental, consequential, or punitive damages arising out of or related to the sale of product to purchaser. In the event Seller is unable to meet its obligations to purchaser, Seller’s sole obligation, and purchaser’s sole and exclusive remedy, will be for Seller to refund to purchaser the full amount of the purchase price paid to Seller.
10. In the event payment is not made when due, purchaser agrees to pay interest at the legal rate until paid in full and agrees to pay all reasonable costs and attorney’s fees necessary for collection.
11. The parties agree that California law will govern notwithstanding any conflicts of law provisions and that any disputes between the parties can only be heard in the state court in Marin County, California. The parties submit to the exclusive personal and subject matter jurisdiction of that court. The prevailing party in any lawsuit will be entitled to recover its reasonable attorney’s fees and costs whether or not the action proceeds to judgment. Any action brought by purchaser must be commenced within one year after the delivery of the product notwithstanding any statutory period of limitation to the contrary.
12. The parties agree that these terms and conditions, along with any invoice or purchase order, constitute the entire agreement between the parties and that no provision can be construed for or against any party based on drafting. Time is of the essence. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provision. Seller’s failure to exercise or enforce any right hereunder will not be deemed a waiver thereof.
13. Purchaser hereby releases and agrees to indemnify, defend with an attorney approved and controlled by Seller, and hold harmless Seller, its shareholders, members, managers, directors, officers, employees, affiliates, agents, attorneys, successors, and assigns from and against any and all direct and indirect claims, demands, lawsuits, actions, liabilities, judgments, damages, losses, fines, penalties, forfeitures, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of proceedings (whether incurred to enforce this indemnity obligation or otherwise) arising out of, in connection with, resulting from or relating to, whether in whole or in part: (i) breach of these terms and conditions; (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, by any intentional, reckless, negligent or other act (or failure to act) of purchaser or its shareholders, members, managers, directors, officers, employees, affiliates, agents, attorneys, successors, and assigns; (iii) losses, damages or injuries caused by, arising out of or relating to the product or the handling or use of the product; and/or (iv) any infringements of any patent, trademark, copyright or other intellectual property rights of any other party with respect to the product either alone or in combination with other products.
14. Purchaser may not modify, change, alter, renounce or waive any term, covenant or condition hereof or any of Seller’s rights or remedies hereunder unless an authorized representative of Seller consents thereto in writing. Seller agrees to provide the product to purchaser only on these terms and conditions, notwithstanding any language in any purchase order, if one exists, invoice, or other writing or oral representation previously, simultaneously or hereafter received by Seller purporting to amend, modify or replace these terms, covenants and conditions with any different or additional terms, covenants or conditions or reciting that any action or inaction by Seller constitutes agreement or consent by Seller to such amendment, modification or replacement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any terms used in these terms and conditions.