These Terms of Sale (the “Agreement”) constitute a legally binding agreement by and between The Rare Wine Co. (“TRWC”) and you (“You” or “Your”). By placing an order with TRWC, You represent and warrant that You have read and understand, and agree to be bound by, this Agreement.
YOU MUST BE TWENTY-ONE YEARS OR OLDER TO PURCHASE AND RECEIVE WINE FROM TRWC. ALL DELIVERIES MUST BE SIGNED FOR, AND ACCEPTED BY, A PERSON TWENTY-ONE YEARS OR OLDER. PROOF OF AGE IS REQUIRED AT TIME OF DELIVERY. BY PLACING AN ORDER WITH TRWC, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 21 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. Any individual placing on order on behalf of a third-party further represents and warrants that they are authorized to act and enter into contracts on behalf of that third-party. This Agreement is void where prohibited.
- CHANGES TO THE AGREEMENT
TRWC reserves the right to change this Agreement at any time upon notice to You, to be given by the posting of a new version or a change notice on the Website. It is Your responsibility to review this Agreement periodically.
- “PRE-ARRIVAL” OR “WINE FUTURES”
Pre-arrival wines (aka wine futures) are wines that, at the time of sale, have not yet arrived in our warehouse. PROJECTED AVAILABILITY DATES FOR PRE-ARRIVAL WINES ARE ESTIMATES ONLY. TRWC HAS NO CONTROL OVER THE AVAILABILITY OF PRE-ARRIVAL WINES, AND TRWC WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OR IN CONNECTION WITH A PRE-ARRIVAL WINE NOT MEETING ITS ESTIMATED AVAILABILITY DATE. You acknowledge and understand that new or additional federal, state or local taxes, duties, or fees may be imposed upon Your purchase of a pre-arrival wine between order confirmation and delivery, and that You are solely responsible for such new or additional federal, state or local taxes, duties or fees.
- "EN PRIMEUR" WINES
"En Primeur" is the sale, authorized by the producer, of wine before it has been released and often while it is still in barrel. Such sales can occur a year or more before the wine’s availability for shipment to the United States. The existence of tariffs on certain European wines could create special complications for En Primeur sales. As these tariffs are reviewed, and may be adjusted, every six months, it is impossible to predict what tariffs may be in place at the time of release of a wine sold En Primeur, and therefore what duties may be assessed as a consequence. Therefore, TRWC does not include any such duties in its En Primeur selling prices. Any tariff that may be imposed on the wine you've purchased en primeur is Your responsibility and the resulting duties must be paid by You after the wine’s arrival in the United States and before it can be delivered to You. Alternatively, as wines offered en primeur are typically purchased with the intent of cellaring, TRWC may, at its sole discretion, delay importation until tariffs no longer apply.
- CANCELLATIONS OF ORDERS PRIOR TO SHIPPING
All orders that are cancelled within 30 days of confirmation of the order by TRWC and prior to shipment are subject to a 10% restocking fee. No orders may be cancelled after shipping. Requests to cancel unshipped orders beyond the 30-day period above will be considered on a case-by-case basis in our sole discretion.
- RETURNS AND REFUNDS ON DELIVERED ORDERS
TRWC is committed to delivering only the best products and services to its customers. You should inspect your wines and other purchases immediately after delivery to be sure there are no discrepancies or condition issues. You must notify us within 14 calendar days of any problems. Returns or requests for credit that are not due to Rare Wine Co. error will be considered in our sole discretion and, if accepted or granted, will be subject to a 20% restocking fee. California state law prohibits the return of gifts or over-purchases of alcoholic beverages.
All TRWC wines are sold in California and, therefore, title to wines purchased by You from TRWC passes to You in California. Notwithstanding the foregoing, title to all wine remains with TRWC and will not pass to You until delivered to You, a third-party carrier, or off-site storage facility.
- TEMPORARY STORAGE OF WINES
We will gladly temporarily store Your purchase at no charge to allow for appropriate weather conditions during shipment and delivery. We strongly recommend shipping Your wine during mild weather conditions, usually during the spring or fall. During extreme weather conditions, TRWC may delay Your shipment until conditions improve. While Your purchase remains in our temperature-controlled warehouse, TRWC maintains insurance coverage for the purchase price of Your wine. We reserve the right to begin charging for storage or to send to an off-site storage facility, at our option, any merchandise remaining in our warehouse longer than 6 months. In either case, the purchaser will be responsible for the cost of storage and insurance from that point on.
- IN-STATE SALES
All wines are supplied, ex-cellars, Brisbane, California. All wines must be paid for in full prior to delivery. For all orders delivered in-state, You are responsible for all shipping costs, including insurance (as applicable) and federal, state or local taxes, duties, or fees. For all orders delivered in-state, the then current local County Sales Tax Rate at the Address of Delivery will be applied to all orders at the time of delivery. You are solely responsible for the shipment of wines and for any loss or damage to the wines once they have left TRWC’s warehouse. By placing an order with TRWC, You thereby authorize TRWC to act on Your behalf to engage a common carrier to deliver Your order to You.
- OUT-OF-STATE SALES
The following terms and conditions apply to non-California residents or to California residents who wish to have their purchases shipped out-of-state:
- Regardless of the customer's state of residence, all purchases (except for food, which is non-taxable) must be delivered out-of-state or the then current local County sales tax rate at the California Address of Delivery will be applied to the purchase price.
- TRWC makes no representation to the legal rights of anyone to ship or import wines into any state outside of California.
- You are solely responsible for the shipment of wines and for any loss or damage to the wines once they have left TRWC’s warehouse.
- By placing an order with TRWC, you thereby authorize TRWC to act on Your behalf to engage a common carrier to deliver Your order to You.
- If You direct TRWC to deliver Your purchase to a freight forwarder or common-carrier engaged by You, You acknowledge that You require such goods to be shipped out-of-state. You are solely responsible for TRWC receiving written proof that such goods were shipped out of the State of California. Such proof of out-of-state shipment must be in the form of a bill of lading or other evidence as TRWC deems sufficient in its sole discretion.
- If TRWC does not receive such proof of shipment out-of-state within ninety (90) days of the date of a final invoice delivered to buyer, TRWC reserves the right to apply California sales tax to the purchase price and charge buyer's account for such amounts, which the buyer agrees to pay within 10 days of receipt of invoice.
- You acknowledge and agree that various states impose limitation on the quantity of alcoholic beverages that may be purchased and brought into their jurisdictions without requiring the purchaser, the seller, or the shipper to possess certain licenses or permits. TRWC, as a condition of sale, assumes no obligation and bears no responsibility whatsoever for applying for or obtaining any such permits or licenses. TRWC DISCLAIMS, AND YOU AGREE TO ASSUME, ALL OBLIGATION AND RESPONSIBILITY WHATSOEVER FOR APPLYING FOR OR OBTAINING ANY SUCH PERMITS OR LICENSES. Therefore, You are strongly advised to investigate such licensing requirements and limitations and to determine the manner in which alcoholic beverages may lawfully be brought into states other than California. You are responsible for all applicable excise, use and sales taxes and fees due to Your state stemming from Your purchase from TRWC of any taxable goods.
- If TRWC, in its sole discretion, is for any reason not satisfied with Your proposed shipping arrangements to a state outside of California, TRWC will deliver Your wine to You in California, in which case the then current California state and local sales tax rate will apply to Your purchase.
- If a California shipping address is not immediately available, or TRWC is otherwise unable to promptly deliver Your shipment to You in California, TRWC reserves the right, in TRWC’s sole discretion, to charge You reasonable storage and insurance fees. All such charges must be paid in full prior to delivery.
- In cases where taxable merchandise purchased by an out-of-state resident remains in our warehouse for longer than 9 months, and we elect to deliver the merchandise to an off-site storage facility, California state and local sales tax will be applied to the purchase price at the time of delivery to the facility.
- PRODUCT DESCRIPTIONS
TRWC attempts to be as accurate as possible in its product and pricing information; however, TRWC cannot guarantee that product descriptions and/or specifications, pricing or any other content are accurate, complete, reliable, current or error-free. In the event that information is incorrect due to typographical, informational, technical or other errors, TRWC will not be liable for any loss or discrepancy with accurate data.
- PRODUCT PRICING
Occasionally, despite our best efforts to be accurate, a product may appear on the website or offer of TRWC with an inaccurate price. If a product’s correct price is higher than the stated price, TRWC will, in TRWC’s sole discretion, either contact You for instructions before shipping, or cancel Your order and notify You of such cancellation. Except as otherwise noted, the suggested retail price displayed for a product represents the retail price suggested by the producer, importer or distributor--such information acquired directly from the producer, importer or distributor or as stated on a reputable website or publication. Such a price may also be estimated in accordance with industry practice or be the estimated retail value for a comparably featured item offered elsewhere. TRWC cannot guarantee that such information is accurate, complete, reliable, current or error-free.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
a) Representations and Warranties. TRWC represents and warrants that: (1) for all wines purchased by You from TRWC, TRWC has good title to the wines and the transfer of TRWC’s title in and to the wines shall be free and clear of liens, claims, or encumbrances; and (2) to TRWC’s reasonable knowledge, without independent investigation thereof and subject to Section 11, above, the wine that You purchase from TRWC is the wine identified and described by the bottle’s label. b) DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WINES AND OTHER PRODUCTS PURCHASED FROM TRWC ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BECAUSE WINE, BY ITS NATURE IS ORGANIC AND SUBJECT TO CHANGE IN THE BOTTLE OVER TIME, TRWC MAKES NO WARRANTY OR GUARANTY OF THE QUALITY OR DRINKABILITY OR SATISFACTION OF ANY WINE SOLD. TRWC EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WINES AND OTHER PRODUCTS PURCHASED FROM TRWC, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE, AND ANY EXPRESS WARRANTIES BY REPRESENTATION, DESCRIPTION, OR OTHER AFFIRMATION OF FACT, SAMPLE, OR ILLUSTRATION, WHETHER ORAL, WRITTEN OR PICTORIAL. c) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TRWC BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF USE OR BUSINESS OR TIME OR ANTICIPATED SAVINGS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO TRWC ARISING OUT OF OR IN CONNECTION WITH YOUR PURCHASE OF WINE OR OTHER PRODUCTS FROM TRWC. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, IN THE EVENT THAT TRWC IS UNABLE TO MEET ITS OBLIGATIONS TO YOU UNDER THIS AGREEMENT, TRWC’S SOLE OBLIGATION, AND YOUR SOLE AND EXCLUSIVE REMEDY, WILL BE LIMITED TO A MAXIMUM OF A FULL REFUND OF THE PURCHASE PRICE. d) APPLICATION. THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATION OF LIABILITY IN ANY OTHER AGREEMENT BETWEEN YOU AND TRWC. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRWC OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
- FORCE MAJEURE
TWRC’s performance hereunder shall be excused where it is prevented, substantially impeded, or delayed by war, actual or threatened act of terrorism, strike, embargo, riot, loss of power or connectivity, malfeasance or breach by or unavailability of third-party suppliers, explosion, equipment failure, accident, inability to obtain labor or materials beyond its reasonable control, epidemic or other widespread disease, new government restriction or regulation, shelter-in-place order, quarantine, government shutdown, fire, flood, earthquake, act of God, or other cause or circumstance beyond its reasonable control, regardless of its dissimilarity to any of the foregoing.
You agree to defend, indemnify and hold harmless TRWC and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, actions, demands, causes of action, actions and other proceedings, expenses and costs, including but not limited to legal costs and attorneys’ fees, arising out of or relating to: (i) Your breach of any provision of this Agreement; or (ii) Your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
- GOVERNING LAW; JURISDICTION & VENUE
This Agreement, including without limitation this Agreement’s interpretation, shall be governed by and construed in accordance with the laws of the State of California without regard to its choice of law principles or the United Nations Convention on Contracts for the International Sale of Goods. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. THE EXCLUSIVE JURISDICTION AND VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS LOCATED IN OR NEAREST TO SAN FRANCISCO, CALIFORNIA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
This Agreement constitutes the entire agreement between TRWC and You concerning Your purchase of wine or other products from TRWC, and supersedes any offer, proposal, order or agreement, whether oral or written, and any other communication between the parties. This Agreement may only be modified or waived by a written amendment signed by an authorized executive of TRWC and may not be modified or supplemented by any preprinted terms in any order, or any other terms of sale proffered by You. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations hereunder will not be assignable or transferable by You without the prior written consent of TRWC in its sole discretion. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and TRWC are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. The headings in this Agreement are for the purpose of convenience only and shall not limit, enlarge, or affect any of the covenants, terms, conditions or provisions of this Agreement. No inference in favor of, or against, either party shall be drawn from the fact that such party has drafted all or any part of this Agreement. You agree to comply with all applicable laws, including but not limited to applicable alcoholic beverage, sales tax and export control laws and regulations.
Effective February 8, 2022