Terms and Conditions (a) "Cellar" means the environmentally-controlled storage facility for wine operated by Iron Gate Cellarage Inc. at 532 Front Street West, Toronto, Ontario or other authorized and approved wine storage facility. (b) "Club" means The Vin de Garde Wine Club, a corporation without share capital, which operates under a letter of authorization from the Liquor Control Board of Ontario ("LCBO") dated October 15, 2004, as amended from time to time. (c) "Delivery Address" is the address of the Member's residence (if an individual) or the Member's place of business (if a firm or corporation), provided by the Member and accepted by Sommelier Service for the purposes of delivery without fee. Using its online log-in code, a Member may also specify a Delivery Address for any specific delivery constituting a gift by the Member to a third party non-member on the basis that the wine is being given without charge and is not being re-sold. (d) "Member" (and correspondingly "Membership") means a person, firm or corporation which has applied for and has received approval to become a member of Sommelier Service, and who is a member in good standing in accordance with the terms and conditions of this Agreement and whose Minimum Monthly Payments are being duly maintained. (e) "Member's Preferences" shall mean the Member's responses to the Sommelier Service's questionnaire and the Member's answers to a telephone interview, addressing such matters as frequency, delivery, wine types, etc. Member's Preferences may be adjusted by the Member, changes to be effective after thirty (30) days. (f) "Membership Tier" shall mean Enthusiast, Connoisseur or Oenophile, according to the Member's Monthly Commitment. (g) "Monthly Commitment" shall mean the payment to be made on the first of each month by every Member in accordance with their Membership Tier, for a membership term of no less than three (3) months. (h) "Ordering" (and correspondingly "Order") means Sommelier Service making and advising the Club of its recommendations and selections of wine for each Member, on behalf of and acting as agent for each Member, and in accordance with each Member's Preferences. Orders are purchased from the LCBO by the Members through the Club. Ordering shall be done in full case lots according to the number of wine bottles in a single case as prepared by the manufacturer from the point of origin, and can range from one to twelve bottles. (i) "Sold Product" means wine that has been purchased by the Member through Sommelier Service directing the Club on behalf of each Member, and which has been paid for by the Member for whom the wine was Ordered, by way of the Member's Monthly Commitment, and which is accordingly owned by that Member. (j) "Sommelier Service" means Iron Gate Cellarage Inc.'s system of recommending, selecting, purchasing, storing and delivering wine for Members in accordance with the terms and conditions of this Agreement. (a) Each Member hereby appoints Sommelier Service as its exclusive representative and agent for the provision of services in accordance with the terms and conditions of this Agreement. Sommelier Service hereby accepts that appointment. (b) Sommelier Service shall be furnished in a manner consistent with good sales procedure and customer relations. Sommelier Service has the right to recommend, select, purchase, store and deliver wine for specific Members in accordance with the respective Member's Preferences. (c) In accordance with this agreement, Sommelier Service shall set up Ordering procedures by which it effects the recommendation, selection, purchase, storage and delivery of wine for each Member in accordance with each Member's Preferences. (d) Sommelier Service's mark-up on wine is only for the recommendation, selection and storage of wine for each Member in accordance with Member's Preferences. Purchasing and delivering is affected by Sommelier Service through the Club, without charge. (e) Each Member acknowledges that Sommelier Service will be providing them with a valuable recommendation, selection and storage service for which Sommelier Service is entitled to collect a payment from each Member. 3. Membership Obligations (a) Each Member shall, on or before the first of each month, make its Monthly Commitment to Sommelier Service. Such payments may be effected by credit card authorization or by cheque, and shall be deemed to have been made when cleared. (b) To facilitate Sommelier Service's recommendation and selection of wine for Ordering purposes for each Member and to establish the Member's Preferences, each Member shall provide Sommelier Service with answers to a questionnaire that will be provided to the Member by Sommelier Service. Each Member also agrees to participate in an oral interview arranged by Sommelier Service at the Member's convenience. Alternatively, a Member may leave the recommendation and selection of wine entirely up to Sommelier Service utilizing the "Wildcard" Service. (c) Each Member acknowledges that the wine in its Order to be recommended, selected, purchased, stored and delivered by Sommelier Service will conform as closely as possible to the Member's Preferences. However, each Member acknowledges that in some instances substitutions or limitations may be necessary at Sommelier Service's discretion based on availability of products. (d) Each Member acknowledges that Ordering shall be done in full case lots individually and among themselves. (e) Where Sommelier Service recommends and selects wine for any Member in a quantity less than a full case, no Order shall proceed unless, for another Member's Order, Sommelier Service has recommended and selected a quantity of the same wine sufficient to make up the difference to a full case lot. Thereupon, Sommelier Service shall direct the Club to order the wine from the LCBO. In such instances, each affected Member(s) is deemed to have appointed the other affected Member(s) as agents inter se, for the purposes of a pooled purchase to a full case lot. (f) Members must be at least 19 years of age. (g) Members must be present at the Delivery Address to receive wine Ordered by Sommelier Service and delivered in accordance with this agreement, and must not appear intoxicated. If so, the Club which is affecting the delivery has the discretion to withhold delivery. In such case, the Member may attend at Sommelier Service's office to take possession of the wine that could not be delivered by reason of the foregoing. Alternatively, the Member may request re-delivery and delivery charges may apply. (h) Upon delivery, Members must sign the confirmation of receipt form presented to them at the time of delivery. Each Member agrees that its signature certifies: (a) that the beverage alcohol product has been paid for; and (b) that the Member is of legal drinking age (19+) in Ontario. 4. Membership Tiers (a) At the time of first applying to become a Member of Sommelier Service, each Member shall stipulate whether they wish to be at the Connoisseur, or Oenophile Membership Tier. The levels of service vary per Membership Tier. (b) A "Connoisseur" Member pays a case rate of $295.00 (c) An "Oenophile" Member pays a case rate of $495.00 Monthly payment commitment will be based on the shipment frequency of each member. Specifically, whether case shipments are desired every one, two or three months. The monthly payment shall be the sum of the case rate divided by the shipment frequency processed in equal monthly payment. 5. Ordering of wine (a) Wine is being sold to each Member by the LCBO through the Club. The LCBO will accept and fulfil Orders from the Club on behalf of each Member for specific wines as recommended and selected by Sommelier Service. Sommelier Service will record the details of each Order and will have received and processed payment on behalf of each Member upon receiving the Monthly Commitment. (b) Once the LCBO has furnished the wines in accordance with the Ordering, a Purchase Advisory and barcode shall be affixed to each case of wine upon Sommelier Service taking possession of it, and before delivery, to confirm that it has been duly ordered and paid for. Affixing the Purchase Advisory to each case of wine will be deemed an acceptance thereof, will confirm that the purchase and sale for those bottle(s) in that case has been complete and that the bottle(s) in the case now constitute Sold Product. The barcode on each of said case(s) shall be electronically traceable to the Purchase Advisory and will confirm that the purchase and sale for each individual case has been completed and that said bottles constitutes Sold Product. (c) It is acknowledged that each Purchase Advisory will reference at least the following information, either explicitly or electronically: (i) Sommelier Service's name and address; (d) Payment will deemed to have been made upon receiving credit card or other financial approval or payment, in accordance with the Monthly Minimum Payments. (e) Upon the LCBO furnishing wine pursuant to the Orders, and after affixing the Purchase Advisory, Sommelier Service shall then either Cellar or deliver the Sold Product according to the Member's Preferences. (f) Delivery of the Sold Product shall be made without fee by the Club as the agent for each Member, to the Delivery Address provided by each Member. 6. Cellaring or delivering (a) Some or all of the Ordered wines that have been furnished by the LCBO to the Club may be stored by Sommelier Service in the Cellar. Such stored wines are not being offered for sale, but as Sold Product are the property of the Member whose name is on the affixed Purchase Advisory or traceable by the barcode affixed to each case of wine. In such cases, these bottles stored in the Cellar are considered the private stock of the Member for whom the wine was Ordered, and the Cellar is a bailee. (b) Sold Products that are not stored in the Cellar shall be delivered by the Club to the Delivery Address(es). (c) Sold Products that are stored in the Cellar for the Member(s) owning the Sold Products may be delivered subsequently by the Club to the Delivery Address(es), in accordance with each Member's Preferences. With such deliveries, Sommelier Service may make up a mixed case from the Member's Sold Product stored in the Cellar. (d) Sommelier Service reserves the right to move any wines in storage from the warehouse in which they may be stored to any other of its warehouses. (e) If a Member is no longer in good standing, Sommelier Service may, upon written notice to the Member, require the prompt removal of any of the Member's wines. Such notice shall be given to the last Delivery Address provided by the Member. If the Sold Products are not removed within thirty (30) days thereafter, title of the Sold Products is deemed to have transferred to Sommelier Service in sole consideration of the services provided to the Member hereunder and without charge. Upon such transfer of title, Sommelier Service may dispose of the Sold Product in accordance with applicable law. 7. Limitation of Liability (a) Each Member acknowledges that Sommelier Service is not guaranteeing the quality, value or market-price of any wine. (b) SOMMELIER SERVICE SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY SOMMELIER SERVICE TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL MAN WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND SOMMELIER SERVICE IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE. (c) IN NO EVENT SHALL THE DAMAGES FOR WHICH SOMMELIER SERVICE MAY BE LIABLE EXCEED THE PURCHASE PRICE FOR THE BOTTLE(S) OF WINE IN RESPECT OF WHICH FOR WHICH DAMAGES ARE CLAIMED. 8. Confidential Information. The procedures, policies, structures and methods for the recommendation, selection, purchase, storage and delivery of wine in Ontario by Sommelier Service, and all Sommelier Service materials provided to a Member, constitute confidential information proprietary to Sommelier Service. No Member may disclose same to any third party. All information provided by a Member to Sommelier Service including Member's Preferences and Orders, will be subject to applicable privacy of information laws. 9. No Partnership. Nothing in any arrangement between Sommelier Service and any Member will constitute a partnership, nor be interpreted to do so. Nor shall a Member represent Sommelier Service or claim to do so. Except for the agency appointments set out in this agreement, it is acknowledged that both Sommelier Service and each Member are independent contractors who may not bind each other to any commitment, except that Sommelier Service may bind any Member in the Ordering of wine. 10. Termination. (a) Either party has the right to terminate this agreement on thirty (30) days notice. If a Member has breached the terms and conditions hereof, Sommelier Service has the discretion to summarily disqualify the Member and terminate this Agreement. In the event of such termination and upon such termination taking effect: (i) Sommelier Service shall have no further obligation to the former Member, but the former Member shall fulfil any remaining obligations it may have to Sommelier Service such as payment of any outstanding Monthly Commitment; and (ii) The Member will have thirty (30) days thereafter to take possession of its Sold Product stored in the Cellar. If the Member does not take possession in that time, title of the Sold Products is deemed to have transferred to Sommelier Service in sole consideration of the services provided to the Member hereunder and without charge. Upon such transfer of title, Sommelier Service may dispose of the Sold Product in accordance with applicable law. (b) This agreement shall be deemed to automatically come to an end without any further obligation of any party in the event that the LCBO, Alcohol or Gaming Commission of Ontario, or other body with jurisdiction, should identify any regulatory issue for Sommelier Service which said body is unable to accept or Sommelier Service is unwilling or unable to rectify, amend or alter. 11. Insurance. Sommelier Service recommends that each Member purchase insurance for any of the Member's Sold Product stored in the Cellar. If such insurance is placed, Sommelier Service shall be named as a co-insured, and shall be given a copy of the face page of the policy. The policy shall contain a waiver of subrogation clause in favour of Sommelier Service. 12. Dispute Resolution. All disputes arising out of or relating to these agreements shall first be resolved by good faith negotiations between the Member and Sommelier Service. Failing which, all disputes shall be determined by arbitration in accordance with the Arbitration Act, 1991, S.O. 1991, c.17. Such arbitration shall be private and confidential, and there shall be no appeal therefrom, including, without limitation, any appeal to a court on a question of law, a question of fact, or a question of mixed law and fact. 13. Assignment. No Member shall have the right to assign any rights it has under this agreements, to any person, firm or corporation who is not already a Member, unless Sommelier Service' consent is first obtained in writing, which consent may be arbitrarily withheld. Each Member agrees that Sommelier Service may assign and transfer its rights to any associated or affiliated corporation, provided that the assignee is owned and controlled by the same shareholders as Sommelier Service and provided that the assignee fully accepts Sommelier Service's obligations hereunder. 14. Miscellaneous. The parties hereto shall execute any further documents that may be required to more fully effectuate the terms of this agreement. This agreement is the entire agreement between the parties with respect to the subject matter hereof, and no amendment, modification, waiver or termination of this agreement or any of its provision shall be binding upon the parties unless confirmed by instrument reduced to writing. No waiver of any provision of this agreement shall affect the rights of the parties hereto to enforce any other provision of this agreement. The headings herein are used for ease of reference only and shall not be used in the interpretation of this agreement. If any of the provisions hereof are found to be unenforceable, they shall be severed from this agreement without affecting the validity of that which remains. This agreement shall enure to the benefit of the parties hereto and their respective subsidiaries, affiliates, heirs, successors, legal representatives or permitted assigns. This agreement shall be interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, and the parties hereto hereby irrevocably attorn to the jurisdiction of the courts of the Province of Ontario. If you have any questions about these terms and conditions, or about your Membership and how the Sommelier Service may best serve you, please contact us at support@sommelierservice.com or by calling 416-234-9449.
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