General Policies
As of October 3, 2019, General Policies have been updated to reflect changes in tax/duty/tariffs levied under Important Notice – Place of Sale. We have added:
Buyer is solely responsible for the transport of wine and other goods purchased and for determining the legality of, and the tax, duty, and/or tariff effect on, having the wine and other goods imported and/or delivered to the applicable destination. All taxes, duties, and/or tariffs imposed at the time of delivery to the United States are the sole responsibility of the buyer and must be remitted prior to the release of the wine.
What this change means:
This effects buyers of any Pre-Arrival wines that have any tax/duty/tariffs levied on their wines during the time of delivery to the United States.
Ordering
Please Note: The time it takes to pull, assemble and process a typical order is approximately 3-5 business days prior to leaving Zachys premises. If your order is "Time Sensitive", please contact us 1-800-723-0241.
Older vintages, fine and rare wine availability in many cases is extremely limited. We will do our best to fill your order but cannot be held responsible if an item is unobtainable at that time.
You may elect to have the original wood case delivered (if applicable) by emailing clientservices@zachys.com upon submission of your order. Please reference your order number. There is a supplemental charge of $12+tax per wooden case for delivery via Ground service.
All orders will be acknowledged via email once they have been submitted. Please allow a minimum of 3 -5 business days for your order to be pulled, processed and assembled for delivery. In some cases, when the inventory of an item is listed as "Limited Quantity Available", there may be a delay while we will double check our stock and check with the distributor in order to locate additional inventory. If an item has sold out, it will be omitted from your final invoice. You may place an order on our webiste or via telephone per the below.
Website
Place your order right now on this site by using your Visa, MasterCard, Diners Club, Discover or American Express. All information is secured under our company security policy.
Telephone
Call us at (800) 723-0241 to place your order over the phone.
Maximum Credit Card Purchase
Credit Card purchases may not exceed $10,000. Maximum credit card charge for Bordeaux Futures is $10,000. Remaining balance can be paid by check or wire transfer. Please contact us regarding purchases that exceed this amount.
Order Cancellation/Return Procedures and Policies*
Cancellation Policy:
Cancelled orders are orders that have been placed by the Buyer that have not yet been delivered. A restocking fee of 10% will be assessed at the time of the issuance of a credit.
Return Policy
Returned orders are any order that has been delivered and then returned or declined by the Buyer. The restocking fee is 10% of the sales amount. Returned purchases are only accepted within 90 days of the purchase date and if the wine is a current vintage still stocked by Zachys. If wine is returned without a receipt, we will only honor the lowest price the item has sold for in the last 6 months and will only issue an in-house credit on the Buyer’s Account valid for one (1) year.
Unfortunately, sometimes wine bottles may not get to you in perfect condition. . Zachys is more than happy to replace or refund within 90 days of the original purchase date items that are damaged on arrival or are corked or otherwise flawed. . Once the damaged bottles have been returned to us, we will issue you a refund, house credit or a replacement.
Special Orders
Zachys reserves the right not to accept any special orders for credit, including special size requests for pre-arrivals or futures.
Important Notice - Place of Sale
Title to, and ownership of, all wine passes from seller to buyer in the State in which the sale occurs, and buyer takes all responsibility for the wine being transported from the state of sale to the buyers selected destination. By placing an order, buyer authorizes seller to act on buyer’s behalf in arranging for transportation of the wine at the buyer’s direction. Alternatively, buyer may choose to pick up the wine at seller’s location or make independent delivery arrangements. Sales tax will be applied based on the seller’s location. Seller makes no representation as to the legal rights of anyone to deliver or import any wines, alcoholic beverages or other goods into any state.
Buyer is solely responsible for the transport of wine and other goods purchased and for determining the legality and the tax/duty consequences of having the wine and other goods delivered to the applicable destination. All taxes, duties, and/or tariffs imposed at the time of delivery to the United States are the sole responsibility of the Buyer and must be remitted prior to the release of the wine.
Local Delivery Pricing
Scarsdale, White Plains, Hartsdale, Ardsley, Greenburgh, Eastchester: free delivery
Remainder of Westchester: $25 for first case, plus $5 for each additional case
Connecticut: $30 for first case, plus $15 for each additional case
Manhattan: $35 for first case, plus $10 for each additional case
Long Island: $35 for first case, plus $15 for each additional case
New Jersey: $40 for first case, plus $20 each additional case
Transportation Protection
As standard practice, a Protection Fee is added to all Zachys deliveries. The Fee is equal to 1% of the value of the items being delivered. In return for payment of the Protection Fee, purchased wines will be protected solely against breakage, theft or fire during delivery to the customer’s declared point of destination. Protection Fee coverage is equal to the value of the purchase price of corresponding wines. It covers the cost of replacement wines and standard re-shipment of those wines to customer. In the unlikely event that a customer’s re-shipment also experiences an issue, the next replacement and re-shipment are not covered by the first protection fee. Travel protection does not cover damage caused by heat or extreme cold.
In the case that you receive damaged merchandise, you must inform Zachys of any broken or damaged bottles within two days of delivery.
By waiving the Protection Fee, you release Zachys from any and all responsibility for breakage or loss that may occur to your order.
Zachys Wine International LLC
Terms and Conditions of Use, Purchase and Sale
(Last Updated February 2023)
These terms and conditions (these “Terms”) govern your use of websites (“Websites”) maintained by Zachys Wine International LLC, its affiliates or subsidiaries (“we” or “Zachys”) and the purchase and sale of products from Zachys. These Terms include the following additional terms and policies, incorporated herein and made a part hereof by this reference:
• Exhibit A - Privacy Policy (the “Privacy Policy”)
• Exhibit B - Wine Storage Agreement (the “Storage Agreement”)
If you do not want to agree to these Terms, you must not access or use the Website. Your acceptance of these Terms shall be a condition to your doing business with Zachys.
These Terms are subject to change without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” appearing above. Your continued use of the Websites after the “Last Updated Date” will constitute your acceptance of and agreement to such changes. These Terms shall apply in addition to, and not in derogation of, any other terms, conditions or policies which may apply to your ordering goods from Zachys, whether imposed by Zachys, at law or otherwise.
ZACHYS PRODUCTS AND THE WEBSITE ARE INTENDED FOR VIEWING IN THE UNITED STATES ONLY BY PERSONS AGED 21 YEARS OLD OR OLDER. USAGE AND/OR VIEWERSHIP BY ALL OTHER PERSONS SHALL BE DEEMED UNAUTHORIZED AND A VIOLATION OF THESE TERMS.
PLEASE READ THESE TERMS AND THE EXHIBITS HERETO CAREFULLY. BY CLICKING “I ACCEPT” OR BY OTHERWISE CONTINUING TO USE THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS.
I. Website Use Policy
a. Access to Website.
i. We reserve the right to withdraw or amend this Website, and any material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website. We may terminate or suspend your user account if you violate any provision of these Terms.
ii. To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
b. Intellectual Property; Trademarks. The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) are owned by Zachys, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website. Zachys’ name, logo and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
c. User Obligations. While using the Website, you shall not violate any applicable law or regulation, access, tamper with or use nonpublic areas of the Website or Zachys’ network or information technology infrastructure, including hardware. You will not access the Website with any manual or automated process for any purpose other than to purchase Zachys products as expressly allowed by these terms and conditions. Data scraping of the Website for any purpose, including without monetary gain, is prohibited.
d. Content. The information presented on or through the Website is made available solely to inform purchases of Zachys goods. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
The Website may include content generated or provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Zachys, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
e. Geographic Restriction. The Website is provided for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so at your risk, on your own initiative and are responsible for compliance with local laws.
f. Disclaimer of Website Warranties. You understand that we cannot and do not guarantee or warrant that information available on the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to the Website for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE AND ITS CONTENTS IS AT YOUR OWN RISK. THE WEBSITE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ZACHYS NOR ANY PERSON ASSOCIATED WITH ZACHYS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER ZACHYS NOR ANYONE ASSOCIATED WITH ZACHYS REPRESENTS OR WARRANTS THAT THE WEBSITE OR ITS CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
II. Purchase and Sale of Goods
a. Orders
i. Age Restriction. YOU MUST BE AT LEAST 21 YEARS OF AGE TO PLACE ORDERS. By placing your order, you represent and warrant to Zachys that you are at least 21 years of age and are otherwise legally permitted to purchase, possess and consume alcoholic beverages. You agree that your order is an offer to buy, subject and pursuant to these Terms, all products listed in your order. All orders are subject to acceptance by Zachys. We may choose not to accept orders at our sole discretion, even after we send you a confirmation with your order number and details of the items you have ordered.
ii. Prices; Quantities; Limitations.
1. All prices posted on the Website are subject to change and variation without notice. We also reserve the right to modify or discontinue any discounts and promotions posted on this Site without notice. The price charged to you for a product described in an order will be the price in effect at the time the order is placed and will be set out in your order confirmation. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
2. Zachys reserves the right to limit quantities of ordered goods in its sole discretion. Zachys uses its best efforts to pull, process and assemble all ordered goods within three (3) to five (5) business days from the date an order is placed. Notwithstanding the foregoing, Zachys makes no warranty or representation regarding the amount of time it may take to pull, process and assemble ordered goods. The availability of certain rare products can be extremely limited. Where possible, we will endeavor to label such products online as “Limited Quantity Available.” Zachys makes no representation or warranty concerning the ongoing availability of products, rare or otherwise, appearing on the Website, and will not be held liable for delays or inaccuracies on the Website regarding current inventory. Sold out items will be omitted from any final order confirmation.
3. You may order original wooden crates by emailing clientservices@zachys.com contemporaneously with submission of your order. An additional charge of $12.00, plus applicable taxes shall apply to any requests for wooden crates. Shipment and delivery of wooden crates shall be upon such terms as we may establish from time to time.
4. You may request that Zachys store ordered goods for you following the placement of an order. Zachys reserves the right, but assumes no obligation, to store ordered goods at no additional cost for a period not to exceed ninety (90) days following your order thereof (the “Initial Storage Period”). The storage of any such goods shall be governed exclusively by those terms and conditions set forth in the Storage Agreement attached hereto as Exhibit B (the “Storage Agreement”). You agree and acknowledge that Zachys has (A) no obligation to store ordered goods for you, (B) you shall remain liable to make payment against your order when otherwise due in accordance with these Terms regardless of whether goods are stored for you and (C) Zachys has the right to charge you for continued storage of ordered goods beyond the Initial Storage Period at its then prevailing rates, which rates are subject to change without notice.
iii. Payment. All terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, MasterCard, Diners Club, Discover or American Express credit card for all purchases. You may also submit orders and make payment by phone by calling (800) 723-0241. By placing an order with a credit card, whether through the Website or otherwise, you represent and warrant that (A) Zachys is authorized to charge such credit card for the cost of your order and for any applicable storage fees, (B) the credit card information you supply to us is true, correct and complete, (C) you are duly authorized to use such credit card for the purchase, (D) charges incurred by you will be honored by your credit card company and (E) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order.
iv. Title and Risk of Loss. Title and risk of loss to all goods shall pass to you upon our transfer of the products to the applicable carrier, or upon delivery to you if Zachys is acting as the carrier. Notwithstanding the foregoing, Zachys reserves the right, exercisable in its sole discretion, to refund or replace goods damaged during shipment in accordance with Section II(b) of these Terms.
v. Legal Requirements. You are solely responsible for determining the legality of, and the application, imposition or withholding of any tax, duty, and/or tariff effect on, having the wine and other goods imported and/or delivered to the applicable destination. We make no representation or warranty concerning the legality of your Order or the shipment or delivery of any alcoholic beverages to the destination in an Order. All taxes, duties, and/or tariffs imposed at the time of delivery to the United States are your sole responsibility and must be remitted prior to the release of the wine. The delivery address for alcoholic beverages cannot be modified after an order is placed and goods have been shipped. Zachys is unable to deliver hard liquor or spirits outside of the State of New York. In accordance with applicable regulations, all deliveries must be received and signed for by an adult 21 years of age or older. Federal regulations prohibit the delivery of alcoholic beverages to post office boxes. Zachys cannot schedule deliveries for a specific time.
vi. Tax. Sales tax will be applied to all Orders as applicable. Seller makes no representation as to the legal rights of anyone to deliver or import any wines, alcoholic beverages or other goods into any state.
vii. Storage. You may request that Zachys delay shipment by up to ninety (90) days by selecting “Store in Zachys climate-controlled warehouse” when you place your order. Storage of all goods shall be made pursuant to a separate agreement by and between you and Zachys. Zachys is otherwise unable to hold deliveries. You bear all risk of spoliation or other temperature-related damage which may occur to goods during transit.
b. Returns; Refunds.
i. Except for any products designated on the Website as final sale or non-returnable, we may accept a return of the products for a refund of your purchase price, less the original shipping and handling costs. To make a return inquiry, you must call (866) 922-4971 or email clientservices@zachys.com within two (2) days of delivery of ordered goods. Notwithstanding the foregoing, all acceptable returns must be made within ninety (90) days of purchase with valid proof of purchase and provided further that (i) Zachys still stocks the goods to be returned and (ii) such goods are returned in their original condition. No returns of any type will be accepted without our express authorization.
ii. You are responsible for all shipping and handling charges on any returned items. You bear the risk of loss during shipment. All returns are subject to a 10% restocking fee.
iii. Refunds are processed as soon as practicable, usually within approximately five (5) business days of our receipt of returned goods. Your refund will be credited back to the same payment method used to make the original purchase on the Site. We will not be responsible for any charges or fees levied against you by your financial or banking institution for any returns and will not be held responsible for any delay in refunds cause by events or parties outside of our control, including your financial institution.
c. No Warranties. Zachys makes no representation or warranty regarding the suitability, availability, reliability timeliness or accuracy of information set forth on its website. ALL GOODS ARE SOLD “AS-IS” AND “AS AVAILABLE,” AND ZACHYS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF TITLE, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF OTHER THIRD-PARTY RIGHTS WITH RESPECT TO GOODS SOLD. ZACHYS LIKEWISE MAKES NO WARRANTY REGARDING THE ACCURACY, RELIABILITY OR AVAILABILITY OF THE USE OF ANY FEATURES OR THE WHOLE OF ANY WEBSITE MAINTAINED BY ZACHYS, OR THAT THE SAME IS FREE OF VIRUSES, MALWARE OR OTHER HARMFUL COMPUTER CODE.
d. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, IN NO EVENT SHALL ZACHYS BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, RELATED TO OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, ZACHYS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE LEGAL OR EQUITABLE THEORY UPON WHICH ANY SUCH CLAIM IS BASED. IN FURTHERANCE OF THE FOREGOING, IN NO EVENT SHALL ZACHYS AGGREGATE LIABILITY ARISING OUT OF, RELATED TO OR CONNECTED WITH THESE TERMS EXCEED THE TOTAL AMOUNTS PAID BY YOU TO ZACHYS IN CONNECTION WITH AN ORDER, OR FIVE HUNDRED DOLLARS ($500), WHICHEVER IS LESS. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OTHERWISE FAIL OF THEIR ESSENTIAL PURPOSE.
e. Indemnity. You agree to indemnify, defend and hold harmless Zachys and its officers, directors, employees, agents, affiliates, successors and assigns (collectively, “Zachys Indemnified Parties”) from and against any and all claims, losses, damages, actions, judgments, liabilities, deficiencies, settlements, penalties, fines, costs and expenses of any kind, including attorney’s fees and filing costs, that are incurred by Zachys Indemnified Parties (collectively, “Claims”) arising out of or related to any third party claim arising out of or related to: (i) your violation of any of these Terms; (ii) your use of or access to the Website, including, but not limited to, your use of the Website's content, services and products other than as expressly authorized in these Terms or your use of any information obtained from the Website; or (iii) any failure by you to comply with any and all applicable federal, state or local laws, regulations or orders applicable to these Terms and Your obligations hereunder.
f. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of Zachys.
g. No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Zachys.
h. Privacy. Our Privacy Policy, attached hereto as Exhibit A, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Website.
III. Miscellaneous.
The headings in these Terms are for the convenience of reference of You and Zachys only and shall not be construed as affecting the interpretation of any portion or the whole of these Terms. If any provision of these Terms is held invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. These Terms shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflict of law provisions thereof. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts or the courts of the State of New York, in each case located in Westchester County, New York, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
IV. Your Comments and Concerns.
This website is operated by Zachys Wine International LLC.
All notices of copyright infringement claims should be sent to our registered copyright agent at the following email or mailing address: Connie Oehmler at coehmler@zachys.com. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), your written notice (the “DMCA Notice”) must include substantially the following:
· Your physical or electronic signature.
· Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
· Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
· Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
· A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
· A statement that the information in the written notice is accurate.
· A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
If you believe that material you posted on the Website was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:
· Your physical or electronic signature.
· An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
· Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
· A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
· A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
All other feedback, comments, requests for technical support and other communications relating to the Website should be directed to: clientservices@zachys.com.
Exhibit A
Privacy Policy
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Terms.
This Privacy Policy (this “Privacy Policy”) applies to Zachys’ website (www.zachys.com) (the “Website”) and any information collected on the Website, in email, text or other electronic messages between you and the Website and any other sources and explains the Website’s data collection practices and usage. Before you navigate through the Website, we encourage you to read this Privacy Policy so that you can understand how the Website collects, maintains, and uses your data. By using and browsing the Website, you consent to the data practices and terms and conditions of this Privacy Policy. If you do not consent, you should exit the Website.
To register an account with our Website, you must provide your email address and a password to access your Zachys’ Website account. By registering an account with us, you agree that you will be solely responsibility for all actions related to your account, will maintain the confidentiality of your login information for your account and will prevent unauthorized use of your account. By registering with us you will automatically be added to our mailing list; however, you have the option to “opt-out.” If at any time you would like to be removed from our list, simply contact us at ClientServices@zachys.com and you will be removed immediately.
What information do we collect from you?
We use certain technologies and services to improve the functionality of the Website, and your browsing experience. When you visit our Website, non-personally identifiable may be collected with “cookies”. Cookies are text files stored on your browser or the hard drive of your computer or mobile device, or other similar technologies to keep track of traffic and users to the Website.
Collected information may include non-personal data such as your IP address, location, times you access the Website, and information about your computer/mobile device’s hardware and software. Zachys will only collect your personally identifiable information (“PII”) if you choose to voluntarily provide us with it. PII is information that can be used on its own or with other information to identify, locate, or contact a single person, or to identify an individual in context. For example, if you contact our office by email, you will be submitting personal information about yourself to us. Another example of PII collected by our Website is credit card or other financial information used in online transactions, which is encrypted by a third-party security provider. When you provide PII, we collect individual session behavior in order to personalize your on-site experience, or to communicate with you after your visit. Individual session behavior can include timing between activities on the Website as well as navigation through the Website. This data is managed by third-party providers. Your PII may be used to contact you about the products and services on the Website, for billing purposes and to fill orders placed by you.
Our Website collects information other than PII via Google Analytics. This third-party service provided by Google collects the “digital footprint” of every user in order to analyze website traffic. This analysis is done in the aggregate and cannot be traced back to any individual visitor. You may prevent cookies from being placed on your device by adjusting your browser settings or by other means; however, this may impact your browsing experience on our Website. For more information on the Google Analytics privacy policy and how to opt out of Google Analytics, please go to Google’s help pages and privacy policy.
We do not knowingly collect or maintain personal information on individuals under 21 years old. The content of the Website is not intended for anyone under 21 years of age. If we learn that we have received data through our Website from an individual under 21, we will remove this information from our records. We do not sell, rent or disclose your information collected on the Website to third parties. For example, we may use your information with third parties, on terms consistent with this Privacy Policy, to help us design services to support the Website.
The Website uses cookies to improve your access to the Website and identify repeat visitors to the Website. Cookies also enable us to show you results and content tailored to your interests to enhance your experience on our Website.
We share aggregated demographic information with our partners and advertisers. This aggregated demographic information does not contain PII or information that could otherwise be tracked to any specific individual user.
Notwithstanding any other provision of this Privacy Policy, Zachys may share collected information with law enforcement agencies and other parties with legal rights to obtain such information in accordance with applicable laws, rules and regulations, or when compelled by subpoena or other legal process. If necessary, we may also share PII in the course of a reorganization, merger or sale.
From time to time our Website requests information via surveys or contests. Participation in these surveys or contests is completely voluntary and is not a condition of any purchase or your use of the Website.
Additional Provisions for California Residents
California residents using the Website may have additional rights under the California Consumer Privacy Act of 2018 (the “CCPA”). When we use the term “personal information” in this supplemental provision, we are using that term as defined in the CCPA, meaning information that identifies, relates to, describes, is capable of being associated with or could reasonably be linked, directly or indirectly, with a particular consumer or household. Under the CCPA, personal information does not include publicly available, deidentified, or aggregate consumer information (as all defined in the CCPA). “Personal information” does not apply to the collection of personal information from job applicants, employees, business owners, directors, officers, medical staff or contractors. If you are a resident of California, you have the right to request what information we collect, use, and disclose. You also have the right to request that we delete your information. California residents also have certain rights regarding the sale of personal information. California residents have the right to opt out of the sale of their personal information and may do so by contacting us at ClientServices@zachys.com.
Third Party Links
The Website may include links to other websites. Also, you may arrive at our Website through a link on a website that is not operated by us. We are not responsible for the operation of any third-party website or the information they collect. We encourage you to review the privacy policies of every website you visit.
Third Party Payment Processor
We use a third-party payment processor (which is currently Stripe) to facilitate your debit and credit card transactions and process payments, including Recurring Charges, to the extent you have authorized them. In such cases, we will share your personal information, including, but not limited to, your debit or credit card information, with the third-party payment processor solely for the purpose of processing your payment and completing the transaction. After the confirmation of your order, you and the personal information you have provided will be transferred to the payment processor’s website to complete the processing of your payment whether or not you realize it. We strive to ensure that any third-party payment processor with which we transact business maintains and complies with its own privacy policy. We will refuse to do business with any third-party payment processors that do not maintain privacy policies in place or that we discover have materially failed to comply with their privacy policies. We cannot, however, guarantee the security of your personal information once it is transferred by us to a third-party payment processor. You may contact us for further information regarding these third-party payment processors or their privacy policies at: clientservices@zachys.com.
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Your financial information sent to us through the Website is encrypted and payments are processed by a secured third-party. The safety and security of your financial and other information also depends on you. Where you have chosen a password for access to certain parts of our Website, you are responsible for keeping this password confidential. Unfortunately, the transmission of information via the internet is not completely secure, and although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our Website. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the Website. To facilitate Zachys’ ongoing efforts to ensure the security of users’ information, Zachys reserves the right to alter its security protocols and procedures utilized at any time.
Amendments to this Privacy Policy
We may periodically update this Privacy Policy without notice to you. Please review this Privacy Policy frequently to stay informed about Zachys’ current privacy practices. Your continued use of the Website after we post any modifications to the Privacy Policy will constitute your acknowledgment of the modifications and your consent to abide and be bound by the modified Privacy Policy.
Contact Us
Please contact us at ClientServices@zachys.com if you have any questions about this Privacy Policy.
Exhibit B
WINE STORAGE AGREEMENT
This Wine Storage Agreement (this “Agreement”) is dated as of the date of the last signature below by and between Zachys Fine Wine Storage, Inc. (“ZFWS”) and the undersigned client (“Client”) and sets forth the Standard Plan terms and conditions (the “Standard Plan”) governing the storage of any and all bottles, cases or boxes of wine or other items (collectively, the “Property”) that Client has caused to be in ZFWS’s custody at one or more of its, or one of its affiliate’s, warehouses (the “Warehouse”).
1. Inventory
(a) Generally, within seven (7) business days after receiving Client’s Property for storage, ZFWS will provide Client a receipt of the Property, which will consist of a general description of the number of cases and/or boxes of wine placed into its Warehouse (the “Acknowledgment of Delivery”). The Acknowledgment of Delivery is a general statement acknowledging ZFWS’s receipt of the Property and will not set forth a description of the wine contained within the cases and/or boxes received. If there is any discrepancy between the Acknowledgement of Delivery and the Detailed Inventory (as hereinafter defined) conducted pursuant to Section 2(b) below, the Detailed Inventory shall control.
(b) After receiving Client’s Property for storage (depending on the amount and type of the Property), ZFWS will prepare a detailed inventory that sets forth the full description of, and uniquely identifies, the Property received by ZFWS (the “Detailed Inventory”). Unless specifically requested in writing, ZFWS will not open any cases that appear to be original wooden cases (“OWC”) or original carton (“OC”). ZFWS will open all cases that appear to be of a mixed variety or that do not appear to be OWC or OC (“Mixed Cases”). For each OWC, each OC and each of the bottles in a Mixed Case received by ZFWS, ZFWS will affix a sticker to the outside of the case, the outside of the carton or on each bottle (as applicable) that sets forth the Client’s name, the ZFWS identification number, the date the sticker was printed and a bar code identifying such product contained therein. This full description of the wine on each such sticker will be used as the description in the Detailed Inventory.
(c) The Detailed Inventory, as may be revised from time to time by additions or withdrawals to the Property by the Client in accordance with the Standard Plan, will be the determinative description and inventory of the Property stored by Client with ZFWS.
(d) All Property is stored on a month-to-month basis. ZFWS will provide a monthly Detailed Inventory for billing purposes, as adjusted pursuant to Section 1(c) above. ZFWS will provide Client with additional adjusted Detailed Inventories upon Client’s reasonable request.
(e) If Client believes there are inaccuracies or discrepancies in any Detailed Inventory provided hereunder, Client must notify ZFWS within thirty (30) days of receiving the Detailed Inventory in question. Failure to timely notify ZFWS of any inventory inaccuracies or discrepancies will result in the waiver of any claim Client may have based on such Detailed Inventory.
(f) Except as provided herein or expressly authorized by Client, Client’s wine boxes or cases shall not be opened by ZFWS. In the event that ZFWS, in its sole discretion, believes it necessary to determine the ownership, nature or condition of the wine in a box or case, or believes a box or case containing Client’s wine is damaged or otherwise requires replacement, ZFWS may repackage the wine into substantially similar boxes or cases at the expense of Client. If, at any time, ZFWS, in its sole discretion, determines that any of Client’s wine is not appropriate for storage or has deteriorated to such an extent that it cannot be stored safely, ZFWS shall notify Client thereof (the “Removal Notice”) and require that Client remove such wine within seven (7) days’ after delivery of the Renewal Notice. If Client fails to comply, ZFWS shall have the right to isolate Client’s wine from other wines in storage, and shall further have the right to remove such wines from the Warehouse after ninety (90) days of the Removal Notice. Client expressly acknowledges that neither ZFWS nor any entity with whom ZFWS contracts to provide pick up or delivery services is a common carrier and ZFWS and any such entity may therefore refuse to transport Client’s wine in its sole discretion. All deliveries to the Warehouse must be scheduled with ZFWS at least five (5) business days in advance of any drop off. ZFWS may not be able to accommodate any unscheduled deliveries. Unscheduled deliveries will be charged a fee ($150 per incident) if ZFWS is able to receive them.
(g) Nothing contained in any Acknowledgment of Delivery or any Detailed Inventory provided hereunder shall constitute or be deemed to constitute a representation or warranty by ZFWS or Client as to authenticity, quality, condition, merchantability, fitness for a particular purpose, correctness of description, size, rarity, importance, provenance or previous storage conditions of any of the Property. Nor shall any statement set forth in this Agreement, or in any other notice or document provided hereunder, be deemed to constitute such a warranty or representation.
(h) Client may request an in-person physical inventory by appointment only with a fee of $150 per person per hour. The hours are captured from the time property is pulled to the time the property is placed back into inventory. ZFWS will provide an estimate upon request.
(i) Client may request a transfer of Property from one to any other warehouse belonging to or operated by ZFWS at ZFWS’s standard transfer and labor rates set forth in the Rate Schedule (as hereinafter defined).
(j) ZFWS may, without notice, move the Property within the Warehouse in which the Property is stored. ZFWS may also move any Property in storage from the Warehouse in which the Property is stored to any of the other warehouse belonging to or operated by ZFWS or any of its affiliates provided ZFWS gives Client thirty (30) days’ prior notice thereof.
(k) Client represents and warrants that it is the owner or has lawful possession of the Property and all right and authority to store the Property with ZFWS and thereafter direct the release and/or delivery of the Property.
2. Storage Fees; Billing
(a) Client will be charged storage, handling and other services fees in accordance with the rate schedule attached hereto as Exhibit A (the “Rate Schedule”). ZFWS may, upon thirty (30) days written notice to Client, revise its rates and the Rate Schedule from time to time in its sole discretion.
(b) If Client elects coverage under the Breakage and Theft Protection Plan (as defined in Section 8), then in addition to the storage fee described in Section 2(a), Client will be charged a separate fee (the “Breakage and Theft Protection Fee”) equal to two and one-half percent (2.5%) of the aggregate fair market value (the “Aggregate Value”) of Client’s Property stored with ZFWS per calendar year. ZFWS will have the right to change the Breakage and Theft Protection Fee percentage at any time and from time to time upon thirty (30) days’ notice to Client. For purposes of this Agreement, the “Aggregate Value” of Client’s Property set forth in the Detailed Inventory will be determined as follows:
1. With respect to any Property Client purchased from Zachys Wine and Liquor Store, Inc., Zachys Wine Auctions Inc., Zachys DC, Inc., Zachys Asia, Limited, ZC Auction, Inc., Zachys Europe, Limited or any other affiliate of ZFWS (collectively, “Strategic Partners”), the Aggregate Value will be the price Client paid for such Property.
2. With respect to any Property that Client did not purchase from a Strategic Partner, the Aggregate Value of such Property shall be the value provided by Client at the time the Property is placed in the Warehouse, subject to ZFWS approval, which approval will not be unreasonably withheld, conditioned or delayed; provided, however, that upon Client’s request and in consideration of an additional fee determined by ZFWS in its commercially reasonable discretion based on the quantity and type of Property, ZFWS will assess an Aggregate Value of the Property at the time the Property is placed in the Warehouse for an additional fee determined by ZFWS and based on the quantity and type of the Property.
3. The Aggregate Value shall be adjusted by ZFWS on a monthly basis to reflect additions to and subtractions from Client’s Detailed Inventory.
4. Client may request that ZFWS provide an updated assessment of the Aggregate Value of Client’s Property at any time for an additional fee determined by ZFWS and based on the quantity and type of the Property.
(c) Client may pay for storage services in advance for a specified period of time or on a monthly basis by authorizing monthly automatic charges to Client’s credit card (“Recurring Charges”). If Client elects to pay for any such storage on a monthly basis, Client hereby authorizes Zachys to initiate Recurring Charges to the credit card provided at the rates and frequency identified herein. CLIENT MAY CANCEL RECURRING CHARGES AS CLIENT’S PREFERRED METHOD OF PAYMENT AT ANY TIME BY CONTACTING ZFWS AT CLIENTSERVICES@ZACHYS.COM. IF CLIENT CANCELS RECURRING CHARGES CLIENT MUST PROVIDE A REPLACEMENT PAYMENT METHOD TO CONTINUE TO RECEIVE STORAGE SERVICES HEREUNDER.
3. Handling In-Out Charge
(a) If all of the bottles in an individual case or box of the Property are OWC or OC or otherwise of the same (“Solid Case”), Client will be charged a handling fee for the handling of each such Solid Case coming in and going out of the Warehouse per the Rate Schedule.
(b) If the wines in a case or box of the Property are a Mixed Case, Client will be charged a handling fee for the handling of such Mixed Cases coming in to the warehouse per the Rate Schedule. Client will be charged for each fill Mixed Case going out of the Warehouse per the Rate Schedule. Per-case or per-box fees and charges do not include handling in the event of the removal of less than a full case or box (i.e., the removal of fewer than all of the bottles in a case or box).
(c) ZFWS may, upon thirty (30) days written notice to Client, revise its Handling In-Out Charges during the time the Property is in storage.
4. Transportation (Local and National)
This Agreement does not cover the transportation of Client’s Property to or from the Warehouse. ZFWS can assist in organizing both the pick-up and delivery of Client’s Property. For more information about transportation services, please inquire directly with ZFWS.
5. Terms and Conditions of Payment
(a) All payments are due upon receipt of invoice. Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly from the date due until paid in full. Client shall be charged an administrative fee of $30.00 for each check returned for insufficient funds. Client shall reimburse ZFWS for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Client shall make all payments hereunder in US dollars. In addition to all other remedies available under this Agreement or at law (which ZFWS does not waive by the exercise of any rights hereunder), ZFWS shall be entitled to suspend the release of any Property or cease performance of any services if Client fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof. In addition, ZFWS reserves the right to require payment in full of all amounts owed by Client in advance of the release of the related Property. Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with ZFWS, whether relating to ZFWS’s breach, bankruptcy, or otherwise.
(b) ZFWS reserves the right to deny any services, including, but not limited to, withdrawal, removal or additional deposits of Property, under the terms of this Agreement if all outstanding invoices are not paid at the time any additional service is requested.
(c) Storage charges are invoiced on a monthly basis. Upon the receipt of any Property during the course of the month, the charge will be pro-rated and billed on the next billing cycle. Thereafter, storage charges will be due monthly.
(d) Included in the monthly billings will be a current Detailed Inventory. If Client believes there are any inaccuracies or discrepancies in any Detailed Inventory provided with these monthly bills, Client must notify ZFWS within thirty (30) days of receiving the Detailed Inventory in question. Failure to notify ZFWS of any inventory inaccuracies or discrepancies within thirty (30) days will result in the waiver of any claim Client may have based on such Detailed Inventory. Client may request a copy of their Detailed Inventory at time during the billing cycle.
(e) Any additional charges for services rendered as provided in this Agreement will be billed upon rendering of such services. Payment will be due as provided in the invoice for such services.
(f) All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Client. Client shall be responsible for all such charges, costs, and taxes; provided, that, Client shall not be responsible for any taxes imposed on, or with respect to, ZFWS’s income, revenues, gross receipts, personnel, or real or personal property.
6. Warehouse Lien; Commercial Goods.
Client acknowledges that ZFWS will have a statutory lien on any and all Property stored under this Agreement, and on the proceeds of any sale thereof to secure Client’s payment of all fees charges and expenses incurred in connection with the storage, handling and care of Property, as well as for like charges and expenses relating to any other goods whenever deposited with ZFWS. ZFWS will have the right to enforce this lien in accordance with the provisions of the New York Uniform Commercial Code (UCC) Section 7-210. ZFWS also reserves a security interest in all other charges and interest payable hereunder and not otherwise described in UCC 7-209(a), and Client expressly authorizes ZFWS to perfect its statutory lien on the Property and such other charges and interest as required by applicable law, including, without limitation, by filing a UCC-1 Financing Statement with the Department of State of the State of New York or other appropriate governmental authority.
Client expressly acknowledges and agrees that none of the Property stored from time to time by ZFWS hereunder or otherwise will consist of “household goods” as such term is used and defined in Section 606 of the New York General Business Law.
7. Termination.
(a) In addition to any remedies that may be provided under this Agreement, ZFWS may terminate this Agreement with immediate effect upon written notice to Client, if: (i) Client fails to pay any amount when due under this Agreement and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment; and (ii) Client has not otherwise performed or complied with its obligations under any of the provisions contained in this Agreement, in whole or in part, and such failure continues for thirty (30) days after Client’s receipt of written notice thereof.
(b) This Agreement may be canceled by ZFWS upon sixty (60) days’ prior written notice with or without any cause or reason being given or required.
(c) If this Agreement is terminated for any reason, Client shall promptly arrange the removal of all Property from the Warehouse, subject to payment of all outstanding fees and charges due hereunder. If Client does not promptly remove such Property, ZFWS may without liability remove the Property and sell the Property at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Property (to the last known place of business of the person to be notified) in the manner provided by law. If ZFWS, after a reasonable effort, is unable to sell the Property, it may dispose of the Property without liability in any lawful manner.
8. Limited Warranty; Breakage and Theft Protection Plan.
(a) Unless Client has opted-in to the Breakage and Theft Protection Plan pursuant to Section 8(b), and has paid the Breakage and Theft Protection Fee and all other fees and expenses associated therewith, ZFWS will not be liable for any loss or damage to Property except to the extent that such loss or damage results from the failure of ZFWS to exercise the level of care with regard to the Property that a reasonably careful person would have exercised under the circumstances. ZFWS will have no liability for damages or losses which could not have been avoided by the exercise of such care.
(b) Client may opt-in to the ZFWS Breakage and Theft Protection Plan (the “Breakage and Theft Protection Plan”) upon notice to ZFWS at any time by executing and delivering a copy of the Breakage and Theft Protection Plan Opt-In Form attached hereto as Exhibit B. If Property is already stored hereunder before Client opts-in to the Liability Protection Program, such opt-in will be effective on the first day of the following calendar month unless otherwise agreed by ZFWS. If Client has opted-in to the Breakage and Theft Protection Plan and is otherwise in compliance with all other terms of this Agreement, then, in addition to the limited warranty contained in Section 8(a), ZFWS will reimburse Client for losses and damage resulting from breakage of bottles or cases (other than breakage occurring as a result of temperature changes, fire, water, damage to the warehouse structure or building, extreme weather events or other environmental conditions) and theft of Property (collectively, “Covered Losses”) as follows:
1. Client will be responsible for the first five hundred dollars ($500.00) of any Covered Loss (the “Deductible”). Client will be solely responsible for any Covered Loss which totals less than the Deductible.
2. If a Covered Loss exceeds the Deductible, Client will be responsible to pay the Deductible, after which ZFWS will pay Client an amount (the “Loss Reimbursement”) equal to (a) the lesser of (i) the Aggregate Value or (ii) the actual cash value, as determined by ZFWS in its sole discretion, of Property that has suffered a Covered Loss minus (b) the Deductible.
UNDER NO CIRCUMSTANCES WILL ZFWS’S LIABILITY UNDER THIS SECTION 8 EXCEED THE ACTUAL COST TO REPAIR, RESTORE AND/OR REPLACE ANY DAMAGED PROPERTY, EVEN IF CLIENT HAS OPTED-IN TO THE BREAKAGE AND THEFT PROTECTION PLAN. THE REMEDIES SET FORTH IN THIS SECTION 8 WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND ZFWS’ ENTIRE LIABILITY FOR ANY BREACH OF A WARRANTY OR OTHER OBLIGATION SET FORTH IN THIS SECTION 8.
9. Limitation of Liability.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, ZFWS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE WHATSOEVER AND HOWEVER ARISING, INCLUDING, WITHOUT LIMITATION, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN BY PERSON OR ENTITY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ZFWS’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000.00), OR, IF CLIENT HAS OPTED-IN TO THE BREAKAGE AND THEFT PROTECTION PLAN, THE AMOUNT OF ANY LOSS REIMBURSEMENT.
10. Insurance.
ZFWS does not obtain insurance on Client’s behalf. Client acknowledges that ZFWS has notified Client that it does not obtain insurance on Client’s behalf, and that ZFWS urges all Clients to obtain their own insurance policy in an amount equal to the value of Property. Client agrees that, if Client obtain’s insurance coverage for the Property, Client will notify the insurer of all of the terms of this Agreement, and will confirm that all insurance coverage Client obtains includes waivers of any right of subrogation by the insurance provider against ZFWS, its agents, employees and contractors for any loss or damage to the Property.
11. Dispute Resolution
(a) This Agreement and all Disputes (as hereinafter defined) arising under, related to or occurring in connection with this Agreement, shall be governed by the laws of the State of New York.
(b) Should any dispute, claim or controversy arise under or in connection with this Agreement or the breach, termination, enforcement, interpretation or validation thereof (a “Dispute”), the parties will attempt in good faith to negotiate toward a resolution of the Dispute.
(c) If the parties cannot resolve a Dispute through negotiation within ninety (90) days after a party notifies the other party of the existence of a Dispute, either party may submit such Dispute for binding arbitration by delivering notice thereof to the other party (an “Arbitration Demand”).
(d) All arbitral proceedings hereunder will be conducted before a single arbitrator to be agreed to by the parties or, if the parties cannot agree on a single arbitrator, then each party shall select its own arbitrator who shall then, collectively, select a single arbitrator. All arbitral proceedings will take place in City and County of New York, and will be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”), except as set forth herein.
(e) In any arbitral proceeding hereunder, the “Exchange of Information” contemplated by Rule 13 of the JAMS Rules is hereby limited to the discovery of this Agreement and any modifications or amendments hereto, documents evidencing any charges incurred pursuant to this Agreement, documents evidencing Client payments made for storage or other services rendered hereunder, and all inventories prepared hereunder, unless the parties agree to an otherwise-limited scope of discovery after the commencement of arbitration.
(f) The prevailing party in any arbitral proceeding hereunder will be entitled to an award of its reasonable attorneys’ fees and costs of arbitration. Judgment on any arbitration award hereunder may be entered in any court of competent jurisdiction.
12. Indemnity
Client hereby indemnifies ZFWS, its officers, directors, employees, agents, affiliates and assigns (together, the “Indemnified”) against any claims, damages, costs, fines, penalties, liabilities, attorneys’ and other professional fees and disbursements incurred by or asserted against the Indemnified by a third party, including any amounts incurred or paid in settlement or any judgment of any action, suit or proceeding brought by a third party, which arises under or in connection with the performance by or duties of ZFWS under this Agreement and any amendment or modification thereto, except to the extent that such liability is directly and exclusively the result of gross negligence or willful misconduct on the part of ZFWS (collectively, the “Indemnity Obligations”). Client’s Indemnity Obligations under this Agreement shall survive any termination of the services provided by ZFWS pursuant to this Agreement and any modification or amendment thereto. Client further agrees to tender any payments due to the Indemnified and/or the Indemnified’s attorneys, under or in respect of Client’s Indemnity Obligations, within ten (10) business days following written notice to the Client or Client’s counsel by the Indemnified that such payment is due therefor.
13. Notices.
All notices to the Client hereunder will be emailed and/or mailed to the addresses of the Client provided in the signature line below, unless a different address and/or method for Client correspondence is indicated in writing and delivered to ZFWS.
14. Miscellaneous
(a) This Agreement, and any subsequent modifications or amendments thereto, represents the entire agreement between the parties concerning the subject matter hereof, and supersedes any and all prior agreements, either oral or written, concerning the subject matter hereof, which prior agreements, if any, are hereby cancelled. Any oral statements made by ZFWS, whether made prior or subsequent to the execution of this Agreement, shall neither constitute a representation or warranty of any kind nor be relied upon by Client in any way. ZFWS reserves the right to change the terms of this Agreement upon thirty (30) days’ written notice. This Agreement may not otherwise be amended or terminated orally, but only upon thirty (30) days’ written notice.
(b) This Agreement may be executed in counterparts, and when so executed each counterpart shall be deemed to be an original, and said counterparts together shall constitute one and the same instrument. This Agreement may be executed and then delivered by email or facsimile, and upon such delivery the signature thereon shall be deemed to have the same effect as if the original signature had been delivered to the other party.
(c) 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 (excluding any obligations to make payments hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ninety (90) days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon ninety (90) days’ written notice.]
(d) The rules and regulations posted at the Warehouse as well as Operational Procedural Policies are made part of this Agreement, and Client agrees to comply at all times with such rules and regulations. ZFWS shall have the right from time to time to amend such rules and regulations. In the event there is a conflict with the rules and regulations and policies with this Agreement, the terms of this Agreement shall control.
(e) Should any part of this agreement shall be rendered void by an appropriate authority, such invalidations shall not invalidate the remaining portions of this Agreement, which shall remain in full force and effect.
(f) No waiver by ZFWS of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by ZFWS. No failure by ZFWS to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise by ZFWS of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(g) ZFWS shall have the right to assign this Agreement, including all of its rights and obligations under this Agreement, at any time and without Client’s prior written consent, to (a) one or more of its affiliates or (b) a successor in interest in connection with ZFWS’s sale of all, or substantially all, of its assets or stock or in connection with a merger, consolidation or change of control. Client acknowledges and agrees that each affiliate of ZFWS is an intended third-party beneficiary of this Agreement.
[Signature Page Follows]
ACKNOWLEDGMENT
I have read and agree to all the terms and conditions set forth herein:
/x/______________________________ Date: ______________________
Client Address
Print Client Name Client Telephone Number
Client Email
ACCEPTED AND AGREED TO:
ZACHYS FINE WINE STORAGE, INC.
By: ________________________
Name:
Its:
H:\A\Zachys\Storage Agreement\ZFWS Agreement 3.1.22.docx
If Client wishes to automatically charge monthly storage fees to a credit card, please complete the information below:
_____________________________________________________________________________________
Credit Card # Exp (Mo/Yr) CVC Mastercard/Visa/Amex
EXHIBIT A
ZACHYS FINE WINE STORAGE RATES
STORAGE
Storage $4.50 per 9 liters
SERVICES
Intake - Solid Case $4.50 each
Intake - Mixed case $12.00 each
Hold Withdrawal- Solid Case (OC) $4.50 each
Hold Withdrawal- Solid Case (OWC) $4.50 each
Hold Withdrawal – Mixed full case $4.50 each
Hold Withdrawal - Less than a full case (per case touched) $12.00 each
General Warehouse Labor $125.00/hour
Physical Inventory Hourly Rate $150.00/hour
Expedited Hold Withdrawal Pick Up $25.00 (plus standard fees)
Expedited Hold Withdrawal Delivery $25.00 (plus standard fees)
Handling Fee (Solid Case) $4.50 per Solid Case
Handling Fee (Mixed Case) $12.00 per Mixed Case
PHYSICAL PRODUCTS
Corrugated Box $8.00
Styrofoam Box $12.00
Styrofoam Shipper – Magnum $6.00
Styrofoam Shipper - 6 Bottles $12.00
Cool Packs - 6 pack $8.00
Cool Packs – Case $15.00
Gift Wrap - per piece $5.00
EXHIBIT B
BREAKAGE AND THEFT PROTECTION PLAN
OPT-IN FORM
ZACHYS FINE WINE STORAGE, INC.
30-A Midland Ave, Port Chester, NY 10573 Tel. (914) 723-5798
Fax (914) 472-6390
BREAKAGE AND THEFT PROTECTION PLAN OPT-IN FORM
This Breakage and Theft Protection Plan Opt-In Form is made in connection with the Wine Storage Agreement between Zachys Fine Wine Storage, Inc. and the undersigned client (“You” or “Client”). Capitalized terms used but not otherwise defined in this form are defined in the Wine Storage Agreement. You should refer to your copy of your Wine Storage Agreement for complete details on the Breakage and Theft Protection Plan (the “Plan”).
You must check and/or circle one of the two options below, indicating that you do or do not wish to opt-in to the Plan. If you do not check and/or circle one of the two options below, you will be deemed to have opted-in to the Plan, and will be liable for the costs, fees and charges of the Plan, and you will be entitled to coverage for Covered Losses under the Plan as more particularly described in the Wine Storage Agreement.
Client 0 DOES / 0 DOES NOT opt-in to the Breakage and Theft Protection Plan.
IF YOU DO NOT OPT-IN TO THE BREAKAGE AND THEFT PROTECTION PLAN, ZFWS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO PROPERTY EXCEPT TO THE EXTENT THAT SUCH LOSS OR DAMAGE RESULTS FROM THE FAILURE OF ZFWS TO EXERCISE THE LEVEL OF CARE WITH REGARD TO YOUR PROPERTY THAT A REASONABLY CAREFUL PERSON WOULD HAVE EXERCISED UNDER THE CIRCUMSTANCES. ZFWS WILL HAVE NO LIABILITY FOR DAMAGES OR LOSSES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE, AND YOU WILL BE FULLY AND SOLELY LIABLE FOR ALL SUCH DAMAGES OR LOSSES.
By signing where indicated below, you acknowledge and agree that (1) you have had an adequate opportunity to read this Opt-In form and have so read and understood it, (2) if you do not opt-in to the Plan, you will not be eligible for coverage under the Plan, (3) if you do opt-in to the Plan, you are responsible for payment of the Breakage and Theft Protection Fee and (4) you understand that, regardless of your choice to opt-in or not to opt-in to the Plan, ZFWS will not obtain insurance for your Property for you or on your behalf.
Signature: __________________________________
Client Name: __________________________________
Date: __________________________________