These Terms of Sale (the “Agreement”) constitute a legally binding agreement by and between KDM Global Partners, LLC (“KDM”) and you (“You” or “Your”). By placing an order with KDM, 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 KDM. 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 KDM, 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.
2. CHANGES TO THE AGREEMENT
KDM 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.
Orders may not be cancelled once they have been shipped.
Title on all alcohol passes to the buyer at the time of purchase in the state of California. If you require that your alcohol be shipped, you authorize KDM to engage a common carrier to deliver the alcohol on your behalf. IF YOU CHOOSE TO SHIP YOUR ALCOHOL TO A NON-RECIPROCAL STATE, YOU ASSUME ALL RESPONSIBILITY FOR COMPLYING WITH YOUR STATE’S LAWS REGARDING ALCOHOL SHIPMENTS. By arranging for transportation of the alcohol, we are providing a service to, and acting on behalf of you. By utilizing this service from us, you are representing that you are acting in compliance with your local and state laws regarding the purchase, transportation and delivery of alcohol. You further represent that you have obtained any required permission, paid any required fees, are working through properly licensed intermediaries where required, are legally entitled to take possession of alcohol, are legally entitled to take quantities ordered and that you and the person accepting delivery of the alcohol are at least 21 years of age. All returns must be made in accordance with California law, and returns across state lines are not permitted. KDM makes no representation to the legal rights of anyone to ship or import alcohol into any state outside of California. The Buyer is solely responsible for the shipment of alcohol and is responsible for any loss or damage to goods once they have left our premises. By placing an order, you authorize KDM to act on your behalf to engage a common carrier to deliver your order to you.
5. IN-STATE SALES
All wines must be paid for in full prior to delivery. California residents 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. California residents are solely responsible for the shipment of wines and for any loss or damage to the wines once they have left KDM’s warehouse. By placing an order with KDM, You thereby authorize KDM to act on Your behalf to engage a common carrier to deliver Your order to You.
6. 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.
- KDM 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 KDM’s warehouse.
- By placing an order with KDM, you thereby authorize KDM to act on Your behalf to engage a common carrier to deliver Your order to You.
- If You direct KDM 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 KDM receiving 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 KDM deems sufficient in its sole discretion.
- If KDM does not receive such proof of shipment out-of-state within ninety (90) days of the date of a final invoice delivered to buyer, KDM reserves the right to apply California sales tax to the purchase price and charge buyer’s account for such amounts.
- 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. KDM, as a condition of sale, assumes no obligation and bears no responsibility whatsoever for applying for or obtaining any such permits or licenses. KDM 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 KDM of any taxable goods.
- If a California shipping address is not immediately available, or KDM is otherwise unable to promptly deliver Your shipment to You in California, KDM reserves the right, in KDM’s sole discretion, to charge You reasonable storage and insurance fees. All such charges must be paid in full prior to delivery.
7. PRODUCT DESCRIPTIONS
KDM attempts to be as accurate as possible in its product and pricing information; however, KDM 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, KDM will not be liable for any loss or discrepancy with accurate data.
8. PRODUCT PRICING
Occasionally, despite our best efforts to be accurate, a product may appear on the website or offer of KDM with an inaccurate price. If a product’s correct price is higher than the stated the price, KDM will, at KDM’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. KDM cannot guarantee that such information is accurate, complete, reliable, current or error-free.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
a) Representations and Warranties. KDM represents and warrants that: (1) for all wines purchased by You from KDM, KDM has good title to the wines and the transfer of KDM’s title in and to the wines shall be free and clear of liens, claims, or encumbrances; and (2) to KDM’s reasonable knowledge, without independent investigation thereof, the wine that You purchase from KDM is the wine identified and described by the bottle’s label. b) DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KDM HEREBY DISCLAIMS ALL WARRANTIES. THE WINES AND OTHER PRODUCTS PURCHASED FROM KDM ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BECAUSE WINE, BY ITS NATURE IS SUBJECT TO CHANGE IN THE BOTTLE OVER TIME, KDM MAKES NO WARRANTY OR GUARANTY OF THE QUALITY OR DRINKABILITY OF ANY WINE SOLD. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KDM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WINES AND OTHER PRODUCTS PURCHASED FROM KDM, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
c) LIMITATION OF LIABILITY.THE LIABILITY OF KDM IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL KDM BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, 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 KDM ARISING OUT OF OR IN CONNECTION WITH YOUR PURCHASE OF WINE OR OTHER PRODUCTS FROM KDM. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, IN THE EVENT THAT KDM IS UNABLE TO MEET ITS OBLIGATIONS TO YOU UNDER THIS AGREEMENT, KDM’S SOLE OBLIGATION, AND YOUR SOLE AND EXCLUSIVE REMEDY, WILL BE FOR KDM TO REFUND TO YOU THE FULL AMOUNT 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 KDM. 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 KDM OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
You agree to defend, indemnify and hold harmless KDM 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 and other proceedings, including but not limited to legal
costs and attorneys’ fees, arising out of or relating to: (i) Your breach of any representation or warranty contained in this Agreement; or (ii) Your violation or alleged violation of any foreign or domestic, federal, state or local law or regulation.
11. GOVERNING LAW/JURISDICTION & VENUE
This Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in California, and shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. The language in this Agreement shall be
interpreted in accordance with its fair meaning and not strictly for or against either party. THE PROPER 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 KDM and You concerning Your purchase of wine or other products from KDM. This Agreement may only be modified by a written amendment signed by an authorized executive of KDM. 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 KDM. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and KDM 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.