These general terms and conditions (GTC
) form together with any signed contract, order form, subscription form or similar contracting document refereeing these GTC (Order Form
), any annex or schedule thereto a legal agreement (Agreement
) between WineCo Swiss SA (CHE-432.554.262), Boulevard des Philosophes 15, c/o OBERSON ABELS Services SA, 1205 Genève, Switzerland (WineCo
) and any customer of WineCo mentioned in an Order Form (the Customer
, together with Wineco, the Parties
) in relation with all products, software, platforms and related services provided by WineCo.
1.1 In General
. These GTC, as amended from time to time, apply to all Products, Services, Software and Platforms provided by WineCo to Customer, including without limitation application program interfaces and related materials. They may be supplemented by other Agreements which may define the terms of application support, service activities, maintenance, updates, and upgrades notably in detail.
1.2 Other Terms
. Any general terms and conditions or other commercial terms and conditions of Customer are expressly waived and shall not apply unless expressly agreed between the Parties in writing.
Terms beginning with a capital letter, whether used in singular or plural form, shall have the following meaning:
” shall mean any person or company, regardless of its legal form, controlling, controlled by or under joint control with WineCo or Customer directly or indirectly; the term “control” meaning the economic ownership of at least fifty per cent (50%) of the voting rights or capital of the company concerned, or the power to direct the management and business policy of the company concerned.
” shall mean any contract, oral or written, concluded with WineCo, without regard to the designation of such contract, any Order of Customer validated in writing by WineCo, these GTC, or any offer of WineCo accepted by Customer and approved by WineCo (e.g. an order form, subscription form, membership form, purchase order, quotation), in relation to the provision of Products or Services by WineCo to Customer.
” shall have the meaning set forth in Section 13.1 below.
” shall mean any warehouse, storeroom or storage space operated by WineCo, owned or rented to WineCo by a Third Party.
” shall mean the Swiss Code of Obligations.
” shall mean, by way of illustration and not limitation, all information disclosed or provided by one Party to the other Party in relation to and/or in the framework of their contractual relationship, including the specifications, the documentation, trade secrets, know-how and internal documents relating to the affairs of the Party disclosing it, and/or the affairs of its Affiliates. The Confidential Information of WineCo includes also notably but not exclusively all information and documentation relating to the Product, Software, Services, software documentation, hardware, hardware design, technology, computer program, technical or research data, product, processes, methods, techniques, formulas, compounds, projects, development, marketing or business plan, patents and patented products or inventions. Notwithstanding the foregoing, Confidential Information does not include information that (i) becomes public independently of a breach committed by the receiving party; (ii) is developed independently by the receiving party; (iii) is known by the receiving party before the other party discloses it; (iv) is legitimately received by a Third-Party not subject to an obligation of confidentiality; or (v) is required to be disclosed pursuant to the law or upon a final, enforceable order by a court or a competent authority (in which case it must only be disclosed to the extent required and after notifying in writing the party to which it belongs).
” shall mean any user of the Platform or software, any individual, professional individual or any company or entity that has entered into an Agreement with WineCo.
” shall have the meaning set forth in Section 18.1 below.
” shall mean with regard to any Product or Software an non-conformity with a specification mutually agreed by the Parties in an applicable Agreement which is solely due to WineCo’s fault.
” shall mean the specific delivery of Products, Services and Software at the place, date(s) and time specified in each applicable Agreement or in these GTC.
” shall mean any error occurring during use of Product and/or access to a Software, which is not necessarily due to a Defect, such as bugs, malfunctions, etc.
” shall have the meaning set forth in Section 6.1 below.
” shall mean any circumstances affecting one Party beyond its reasonable control and objectively preventing it from fulfilling its contractual obligations, such as natural disasters of a particular intensity (such as, but not limited to, epidemies, floods, fires, earthquakes, explosions, etc.), war, riots, acts or threats of terrorism, strikes or breakdowns in the electric or telecommunication networks, or other governmental acts, and inability to obtain suitable and sufficient labour and Product for the provision of Services, and/or the sale and/or the distribution of Product.
” shall mean these general terms and conditions, as amended from time to time by WineCo.
” shall mean any invoice, order form, subscription form or any other appropriate communication (e.g. pricing schedules) indicating WineCo’s Fees.
“Instructions for Use
” shall mean the instructions as for use and/or storage pertaining to a Product, Platform, Service or Software.
” shall mean any order for Products, Software or Services placed by Customer via the Software, Platform, an Order Form or by any other means provided by WineCo.
” shall mean any signed contract, order form, subscription form or similar contracting document referring these GTC.
” shall mean WineCo, Customer or their Affiliates.
” shall mean all information that relates to an identified or identifiable person, according to the Federal Data Protection Act.
” shall mean the platform available at www.vintage-cellar.com
” or “En-Primeur
” shall mean any Product listed as such by WineCo.
” shall mean any goods or products provided by WineCo to Customer as detailed in the Agreement and/or in the Order, including Primeurs.
” shall mean any services in connection with the Product, the Platform and/or the Software e.g. installation of the Software, use or access of the Software, customer service, training, technical support, Storage, Brokerage, concierge, sommelier, rental, cellaring or consulting services explicitly provided by WineCo to Customer under and in accordance with the terms of one or more applicable Agreement.
” shall mean any software provided by WineCo to Customer in relation to the operation of the Product, Platform or Services (e.g. user interface, application) and in accordance with the terms of one or more applicable Agreement.
” or “Storage Services
” shall mean space rental services in Cellars provided by WineCo to Customer.
” shall have the meaning set forth in Section 14.2 GTC.
” shall mean any person or entity other than a Party or its Affiliates.
” shall have the meaning set forth in Section 19.1 below.
” shall mean WineCo Swiss SA (CHE-432.554.262), Boulevard des Philosophes 15, c/o OBERSON ABELS Services SA, 1205 Genève, Switzerland.
3. Acceptance, Agreements
3.1 Acceptance of GTC
. By visiting the Platform, subscribing for its use, downloading Software or using the Services, notably the services for supply or storage of Products, Customer expressly agrees to be bound by these GTC. For the avoidance of doubt, if Customer is a legal entity, any subscription for the use of the Platform and/or use of the Services by any of its employees, agents or representatives, on behalf of Customer, is deemed as acceptance of the terms of these GTC by Customer.
. visiting the Platform, subscribing for its use, downloading Software, using the Services or placing an Order, Customer confirms and warrants that Customer is capable of entering into legally binding agreements and that Customer is of legal age to purchase alcohol Customer’s country of residence. If Customer is subscribing for the use of the Platform or using any Service on behalf of a legal entity, Customer represents and warrants that Customer is duly authorized to do so.
4. Offers and Agreements
. Offers made by WineCo that are to be accepted within a fixed acceptance period shall be valid until the expiry of that period and WineCo shall be released from its offer if it has not received acceptance before the expiry of that period. Offers made without a fixed acceptance period are not binding on WineCo and may be modified at any time without notice to their recipients.
5. Orders of Customer
5.1 Acceptance by WineCo
. WineCo is free to accept or decline the whole or part of any Order placed by Customer at its sole discretion. Where WineCo declines part of an Order, it shall inform and afford Customer the opportunity to continue with the part of the Order accepted by WineCo.
5.2 Product Availability
. After receipt of an Order, WineCo shall check the availability of the ordered Products. If, for any reason, at any point before the delivery of Products to Customer, WineCo is unable to fulfil the Order or any part of it, WineCo shall inform Customer and reimburse any amount already paid by Customer for the part of the Order that WineCo is unable to fulfil.
5.3 Order Withdrawal
. Customer may cancel any Order by contacting WineCo within 48 hours from the time it has placed such Order. WineCo may accept or decline cancellation requests at its sole discretion, in particular with respect to Primeur Products. A cancellation request shall be accepted and Customer shall be reimbursed of any amounts already paid only if and once WineCo expressly confirmed its acceptance of such cancellation.
II. Financial Terms
. Customer shall pay all the price(s) and/or fee(s) indicated by WineCo on an Invoice (the Fee
)). The Fees can notably include without limitation purchase price for the acquisition of Products, fees for Software, rental fees, service fees for Services, membership fees as well as any additional fee for any additional services, new releases or upgrades not included in the Agreement.
6.2 Indicative Prices
. Unless expressly indicated otherwise, prices and Fees listed on the Platform or communicated via any other means than an Invoice are indicative and for information purposes only. Only the Fees mentioned in an Invoice are binding.
. Unless otherwise indicated by WineCo, the price and the currency in which the Fees are payable shall be specified during the order process and may vary depending on Customer’s country of residence and/or the final delivery destination of Products, if applicable.
6.4 Timely Payment
. The continued use of the Services by Customer shall be subject to the timely payment of all the Fees. WineCo may temporarily suspend any License or the provision of any Services if Customer is in default for payment of any Fees due.
6.5 Payment for Storage
. Products purchased for Storage must be paid in full before being put into Storage or dispatched, as appropriate. All Storage Fees must be paid in full before any delivery to Customer of Customer’s Products put into Storage.
. Changes of the Fees and/or the subscription models, if applicable, shall become effective as of the next renewal term subject to a prior written notice of 1 month by WineCo. If Customer’s subscription model is no longer available, the subscription shall automatically be transformed into a subscription under the next closest subscription model existing as of its renewal, as advised by WineCo in its notice to Customer.
7. Payment Terms
7.1 Payment Method
. WineCo shall charge the payment method selected by Customer (e.g. credit card, debit card, gift card) for any payable Fees and applicable costs, including shipping fees and taxes. If the selected payment method cannot be charged for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amount, and WineCo shall attempt to charge the payment method again as Customer may update its payment method information.
. Customer is solely responsible for updating Customer’s payment information and payment method, and for ensuring that the billing address provided to WineCo is consistent with the billing address for Customer’s payment information or payment method.
7.2 Recurring Fees
. In case of recurring Fee(s) payments and unless agreed otherwise in writing, WineCo shall send its Invoices to and charge Customer on a regular basis, before the beginning of the period covered by the Invoice, for payment before the beginning of such period. Paid Invoices are non-refundable in case of termination of the Agreement, except as provided in Section 15 GTC.
7.3 Advance Payment
. Unless otherwise agreed in writing, the Fees related to Services recurring over time (e.g., Storage Fees, Service or membership subscription Fees) shall be payable in advance on a monthly, quarterly or yearly basis, as applicable, and non-refundable in case of termination. Additional Fees as incurred through Customer’s use of the Services are invoiced in arrears, on a monthly basis.
7.4 Renewal and Cancellation
. Services (including memberships) recurring over time renew automatically until cancelled in accordance with this Section 7.4 GTC. Customer shall be charged no more than 24 hours prior to the start of the latest concerned period. If Customer’s payment method cannot be charged for any reason (such as expiration or insufficient funds), and Customer has not cancelled the corresponding Service, Customer remains responsible for any uncollected amounts, and WineCo shall attempt to charge the payment method as Customer may update Customer’s payment method information. This may result in a change to the start of the next paid period and may change the date on which Customer is billed for each period. WineCo reserves the right to cancel any subscription Customer may have if WineCo is unable to successfully charge Customer’s payment method to renew its subscription. Certain subscriptions may offer a free trial prior to charging Customer’s payment method. If Customer decides to unsubscribe from a subscription before WineCo starts charging Customer’s payment method, the cancelation of the subscription must incur at least 24 hours before the free trial ends.
7.5 Currency and Taxes
. All payments shall be made in the currency quoted by WineCo in its Invoice, on the bank account mentioned on each Invoice. Fees and rates indicated by WineCo shall be exclusive of all taxes and duties if and as applicable, in particular VAT and insurance fees. All orders for export may be subject to import duties and/or local taxes on alcohol. Customer shall be responsible for payment of all duties, taxes, insurance fees and bank charges.
7.6 Banking fees
. In addition to the Fees, Customer is responsible for the payment of any banking fee or transaction fee.
. Payment shall be considered received by WineCo on the day the amount of the Invoice is credited to WineCo on the account mentioned on the Invoice. Payments received regularly shall be offset with the oldest debt. Unless otherwise agreed upon, Customer is not entitled to withhold and/or offset any amounts owed.
7.8 Late payment
. If Customer fails to fulfil the terms of payment, WineCo shall be entitled to charge an interest of 10 % per year on the outstanding amount, without having to send any payment reminder to Customer.
7.9 Default of Payment
. If Customer fails to fulfil the terms of payment, WineCo shall also have the option to do one or more of the following: (i) decline to accept additional orders or fulfil pending orders; (ii) suspend contractual performance until payment is received by WineCo or further assurances asked for by WineCo are received; (iii) temporarily suspend any Services and/or any Customer’s access and use of the Software; and/or (iv) if Customer has been in default for more than 30 days, declare the entire outstanding unpaid amount due and payable immediately and/or terminate the Agreement unilaterally and immediately by written notice to Customer. Nothing contained herein shall release Customer from any previous obligation.
. Customer shall be liable to WineCo for all costs incurred by WineCo in its collection of any amounts owed by Customer which are not paid when due, including collection agencies’ and attorneys’ fees and expenses, regardless of whether a lawsuit is filed or not.
. From time to time, WineCo may review the Customer’s creditworthiness. Customer agrees to provide WineCo with all credit information reasonably requested, and Customer represents and warrants to WineCo now, and each time Customer places an Order, that all information Customer has provided is true, correct and updated.
7.12 Membership Subscription
. Customer can choose to subscribe the Services on an annual basis, or for such periods that WineCo may offer from time to time.
7.13 Free trials
. WineCo may offer a free trial membership subscription for a fixed period of time, as determined by WineCo in its sole discretion.
IV. Obligations of WineCo
8.1 Provision of Services
. Subject to Customer’s compliance with all its contractual obligations, in particular the timely payment of all due amounts, WineCo shall provide the Products, Platform, Software and Services in accordance with one or more Agreements.
8.2 Obligation of Means
. By default, WineCo shall only be bound by an obligation of means under an Agreement for the supply of Services, Software and Platform. WineCo shall supply the Services in accordance with standard professional practice, with care and diligence required from a supplier of similar services. Training, technical support or concierge, lifestyle or consulting services do not place WineCo under any obligation of positive financial result nor profit as result of wine transaction
8.3 Obligation of Result
. WineCo shall only have an obligation of result if such obligation is expressly provided for in an Agreement in written form, and if the expected results are described therein.
9. Provision of Services
. WineCo may sub-contract the performance of Services, in particular Storage Services, or any part thereof. In such case, WineCo shall be entitled and is hereby expressly authorized by Customer to enter into agreements with Third-Parties and Customer expressly undertakes to comply with any Third-Party applicable terms and conditions.
. Customer is solely responsible for the setting up of the Software. WineCo may provide remote installation services to Customer and assist Customer in the installation or setting up of the Software. If WineCo shall provide installation or setting up Services, Customer undertakes to fulfil in any event and at its expense the conditions necessary for a proper installation by WineCo, as indicated by WineCo, before such installation takes place.
. WineCo may provide sommelier, concierge, consulting, cellaring and lifestyle Services to Customer in accordance with a separate Agreement. Such Services are provided by phone, email, messaging or via the Software or the Platform, unless otherwise agreed in writing.
. Concierge Services may include booking and ticketing Services provided in collaboration with Third-Parties. Such Services are subject to availability and may change from time to time and without notice. WineCo reserves the right to deny booking or ticketing requests if Customer repeatedly fails to show up or violates any Third Party’s terms and conditions, including their cancellation terms.
. The provision of Storage Services, cellaring services and related services is subject to the rental by Customer of Storage in accordance with Section 14 GTC.
9.6 Additional services
. To the extent expressly provided for by specific agreements, WineCo may provide the Customer with other services, in particular Software development services, as well as support and maintenance Services.
9.7 Support and maintenance
. In the absence of a specific support and maintenance Agreement, WineCo may, at Customer’s request and at Customer’s expense, set up a support Service. In this case, WineCo shall use its best efforts to resolve and/or correct the problem concerned, without any guarantee whatsoever, in particular in terms of reaction time, intervention time or correction time or result.
9.8 Evolutive maintenance
. Except as otherwise agreed upon in writing, WineCo shall not assume any obligation to carry out further developments and specific projects, for instance improvement and adaptation of the Platform and/or of the Software or other developments (evolutive maintenance).
10.1 10.1 WineCo may stop providing support Services at any time. If WineCo ceases the support for Software or the Platform, WineCo has no obligation to perform the Services or to deliver the Software or the Platform beyond the end date of support. WineCo shall reimburse the Customer the amount of the Fees already paid by the Customer for the Services that will not be executed. The Services related to the Software already executed by WineCo and Products already purchased by the Customer from WineCo will not be reimbursed to the Customer at the End-of-support date.
10.2 10.2 WineCo may terminate any Agreement relating to Software or Platform by the support end date, upon reasonable notice to the Customer.
V. Products and Services
11.1 Ownership Transfer
. Customer shall acquire ownership on purchased Products other than Primeur Products when WineCo has received full payment of the corresponding Fees, including interest, if applicable, in accordance with Section 7.7 GTC.
11.2 Product Delivery
. All Products shall be delivered EXW (ex-works) (Incoterms 2020) at WineCo’s facilities or premises, as indicated by WineCo in the order process. If dispatch is delayed at the request of the Customer or due to reasons beyond WineCo’s control, the risk shall pass to Customer at the time originally foreseen for their leaving WineCo’s premises. From this moment on, the Products shall be stored and insured at the costs and risks of Customer.
11.3 Products in Storage
. Shall Products be stored in Cellars in accordance with Section 14 GTC, their Delivery shall take place when they are available EXW (ex-works) (Incoterms 2020), at WineCo’s facilities or premises, as indicated by WineCo in the order process.
11.4 Times and Dates
. Unless otherwise agreed in writing, Delivery times and dates shall not be binding to WineCo and are given for information purposes only. WineCo shall be entitled to make partial Deliveries.
. Unless otherwise agreed in writing, shipping costs shall be borne by Customer, including delivery, packaging and handling charges. WineCo undertakes to Customer to package the Products properly (unless this is incompatible with the nature of the Products) and to secure the Products as such, that, in case of normal transport, the Products arrive at the destination in good order. WineCo shall ensure usual transport insurance. WineCo reserves the right to charge additional costs in case an unsuccessful delivery is due to Customer (e. g. inadequate delivery instructions, unavailability to take receipt of the delivery).
11.6 Evidence of Delivery
. Unless Customer demonstrates otherwise, the records of WineCo related to the quantity of Products delivered to Customer and the time and place of Delivery shall be conclusive evidence as to such facts. Unless expressly agreed otherwise, WineCo does not guarantee that the Products will be delivered in their original packaging.
. Customer is responsible for inspecting all delivered or collected Product within 15 days after Delivery or collection and shall notify immediately WineCo in writing of any Defect or any unconformity between a delivered or collected Product and the Order of Customer that can be discovered on a visual inspection. In the absence of any such timely notice, the Product shall be deemed irrevocably accepted and any such later claims shall be deemed waived. In case of Defects or unconformities due to Wineco’s fault notified in accordance with this Section 11.7 GTC, WineCo may at its own option: (i) replace the Product or (ii) reimburse Customer by crediting on its account the Fees paid for the concerned Product.
11.8 No Lien, Encumbrance or Charge
. Customer shall not under any circumstances pledge or charge or otherwise encumber any Products on which it has not acquired valid ownership. In case of any breach of this Section 11.8 GTC, all Fees payable to WineCo for such Products shall become immediately due and payable to WineCo.
12.1 Ownership Transfer
. Customer shall only acquire ownership on purchased Primeur Products once (i) WineCo has itself acquired valid ownership rights on the concerned Primeur Products so that it may validly transfer such ownership and (ii) WineCo has received full payment of the corresponding Fees, including interest, if applicable, in accordance with Section 7.7 GTC.
. Primeur Products shall be dispatched by WineCo when they become available to WineCo.
12.3 Transfer of Risks
. In case of Primeur Products, all risks shall pass upon Customer when WineCo receives payment in accordance with Section 7.7 GTC.
13. Brokerage Services
13.1 Sale through WineCo (Brokerage)
. In accordance with a separate agreement, WineCo may offer brokerage Services to Customer in relation to the promotion, negotiation, purchase and sale of Products, Stored Goods and other similar goods. WineCo may offer Brokerage services at its sole discretion.
. WineCo shall keep Customer regularly informed and perform the brokerage Services with reasonable care and due diligence.
13.3 Customer Responsibility
. Customer confirms that in deciding whether or not to enter into a transaction or agreement, it shall rely on its own judgment and expertise and acknowledges that it is its own responsibility to ensure that such transaction complies with its objectives. WineCo cannot be held responsible for incorrect advice it gives in good faith relating to Brokerage Services.
. Instructions shall be placed by, and WineCo will only accept instructions from, authorised users. Instruction may be placed either by telephone or in writing or as specified by WineCo in a separate agreement.
. All Instructions for which WineCo can reasonably assume that they have been transmitted by Customer are at the Client’s account and risk and may be executed by WineCo. WineCo reserves the right to refuse any instruction, in which case it shall contact and inform Customer within a reasonable period of time. WineCo cannot be held liable if an instruction is not executed or is executed only after a delay.
. Customer shall reimburse WineCo of any expenses incurred by WineCo in carrying out the brokerage Services on behalf of Customer, including the fees related any promotional or marketing activity, whether the contemplated agreement has been concluded or not.
13.7 Success Fee
. For each concluded agreement, WineCo is entitled and Customer shall pay to WineCo a success Fee of 10% on the price of the sold Products, excluding VAT.
14.1 Storage Services
. WineCo may provide storage rental services in storage facilities under the management of WineCo (Cellars
) and cellaring Services to Customer.
14.2 14.2 Storage & Insurance Fees.
Storage & Insurance Fees are all-inclusive and shall amount to 1.5% per year of the acquisition value of the Stored Goods. The value of the Stored Goods shall be determined each year on April 1. Storage & Insurance Fees are payable by Customer in 1 installments, every March 31. For Storage period starting before April 1 or ending before March 31, Storage Fees shall amount to 1.5%/12 for every calendar month. Any month or partial month of occupation is due and payable in full.
14.3 Stored Goods.
The Storage Services shall only be used in relation to Products, property and goods complying with WineCo’s prescriptions and all applicable laws and regulations, and Customer undertakes to store only such Products, property and goods in the Cellars (Stored Goods). WineCo reserves the right to refuse the storage and/or cellaring of products that do not meet its prescriptions. Customer expressly warrants that the Stored Goods do not include contraband, drugs, or any other illegal substances or stowaways and that its use of the Storage Services complies with all applicable laws and regulations.
14.4 14.4 Insurance and Management
. Unless otherwise agreed or provided, Stored Goods shall be insured by WineCo. The insurance value is based on the acquisition price of Stored Goods. The estimated market value is given for purely information purposes only and the real market value of the Stored Goods may vary. Wineco cannot be held responsible of any variation in that effect.
14.5 Withdrawal from Cellars
. Upon Customer’s withdrawal notice of any Stored Goods and subject to timely payment of any Storage Fee in accordance with Section 14.2 GTC, WineCo shall arrange their withdrawal from the Cellars and their delivery to Customer’s designated address at Customer’s cost and risk. Standard delivery of Stored Goods shall take normally place in accordance with the applicable business standards. Any indications as to an expected delivery time and date are estimates only and shall not be binding to WineCo.
14.6 Sale of Stored Goods
. If Customer sells any Stored Goods it shall undertake that the buyer adhere to these GTC and notify immediately WineCo by any means provided and as indicated by WineCo, of the identity of the buyer and confirm whether such buyer wishes to continue storing the Stored Goods in Cellars. Customer shall provide WineCo in a timely manner with (i) the buyer’s written confirmation of the date as of which it shall be liable for payment of the Storage Fees; or (ii) notice of its intention to withdraw the sold Stored Goods and the address to which they shall be delivered. Customer shall remain liable for the payment of all Storage Fees until the date on which the buyer becomes liable for payment of such Fees or the date the Stored Goods are withdrawn from the Cellars, as applicable.
14.7 Limited Warranty. WineCoSHALL MAKE ITS BEST EFFORTS TO STORE AND KEEP THE STORED GOODS IN APPROPRIATE STORAGE CONDITIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WineCo DISCLAIMS ALL WARRANTIES WITH RESPECT TO STORAGE AND CELLARING SERVICES, WHETHER IMPLIED OR STATUTORY. IN PARTICULAR, WineCo EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL LIABILITY OR WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO ANY DAMAGE OR LOSS CAUSED BY OR ASSOCIATED WITH: (I) THE STATE AND CONDITION OF STORED GOODS, INCLUDING BUT NOT LIMITED TO ANY CHANGE RESULTING IN ULLAGE OR NATURAL AGING EFFECTS AND/OR PACKAGING (II) USAGE OF CELLARS NOT IN ACCORDANCE WITH WineCo’S INSTRUCTION FOR USE OR PRESCRIPTIONS OR APPLICABLE LAWS AND REGULATIONS; (III) ABUSE, MISUSE, NEGLECT, IMPROPER MAINTENANCE OR STORAGE, ACCIDENT, VANDALISM OR THE NEGLIGENCE OF ANY PARTY OTHER THAN WineCo; OR (IV) FORCE MAJEURE. WineCo’S OBLIGATIONS ARE ALSO CONTINGENT ON CUSTOMER’S PAYMENT IN FULL OF THE APPLICABLE FEES.
14.8 End of Storage
. Unless otherwise agreed in writing, at the end of the storage period for whatever reason, WineCo shall return all Stored Goods belonging to Customer at Customer’s designated address, at Customer’s costs and risks. If such return is delayed for any reason, WineCo shall store the Stored Goods, and the Customer shall be liable for any risk of loss and any damage to the Stored Goods, and for the payment of any cost, including shipping, insurance fees and taxes, related to the Stored Goods. Customer shall pay to WineCo a compensation equal to the Fees which would be due for the storage of the products during the delay period.
14.9 Right of Retention
. If Customer fails to fulfil the terms of payment, WineCo shall, in addition to the provisions of Sections 7.8 and 7.9 GTC, have a right of retention on all Stored Goods and property stored in the Cellars in relation to any outstanding Invoice. Upon expiry of an unsuccessful 25-day written notice to Customer, WineCo shall be entitled to dispose of and sell all or part of the Stored Goods to the extent necessary to cover the outstanding Invoices, by the best method reasonably available. Customer shall be entitled to any remaining proceeds of a sale after deduction of any outstanding Invoice, any cost incurred by WineCo in connection with such sale and any Storage Fee due for the Stored Goods until the date of such sale. If Customer becomes insolvent, WineCo shall exercise its rights under this Section 14.9 GTC in relation to any outstanding amount owed by Customer, even if it is not yet due and payable.
14.10 Disposal by WineCo. WineCo shall be entitled to dispose of or deal with any Stored Goods without notice (i) in case Customer cannot be traced and reasonable efforts have been made by WineCo to contact any parties who may reasonably be supposed by WineCo to have interest in the Stored Goods or (ii) if such Stored Goods have perished, deteriorated, altered or are in immediate prospect of doing so in a manner which has caused or may reasonably expected to cause loss or damage to WineCo or any third party or to violate any applicable law or regulation.
. In case of a dispute with Customer about Stored Goods, the information contained in any Invoice issued by WineCo in respect to Products or Stored Goods, delivery receipts, stock certificates or other records shall be final and conclusive.
15.1 Software Delivery
. WineCo shall provide the Software in object code only; no physical format shall be delivered. Delivery is considered to have taken place at the time of downloading by Customer. Customer shall inform WineCo immediately of any problem that may have prevented complete downloading of the Software. If the setting up of the Software takes place in accordance with Section 9.2 GTC, Delivery is deemed to have taken place at the time of the installation by WineCo.
15.2 Limited Warranty
. WineCo does not represent or warrant that the Software will meet the Customer’s requirements or objectives. In particular and unless expressly specified, WineCo does not guarantee that (i) the Software shall be free of Defects and/or Errors and/or available without interruption or that it shall correct all the Defects and/or Errors that may arise; (ii) the Software shall work in combination with any hardware, software, Third-Party Software, system, service or data not supplied by wineco; and that (iii) the Software shall meet the Customer’s expectations and requests, or that they may be adapted or configured according thereto. The use of the Software is entirely at the Customer’s own risk and WineCo expressly disclaims any warranties regarding the Customer’s use thereof and/or any decisions taken by the Customer’s based on the insights gained from its use of the Software.
15.3 Updates and Upgrades
. WineCo may from time to time and at its sole discretion release updates, upgrades, and/or new versions of the Software, which shall be installed by Customer. Customer is solely responsible for installing and using the last version of the Software in accordance with WineCo’s prescriptions. WineCo DISCLAIMS ANY LIABILITY FOR ANY DEFECTS, ERRORS OR MALFUNCTIONS OF OUTDATED OR OBSOLETE VERSIONS OF THE SERVICES OR ANY DAMAGES RELATED TO THE USE THEREOF.
16. Change to Product, Software and Services
WineCo may from time to time change the Products, the design, content or construction of the Platform, the Software or the scope of Services. In the event Product, Software or Services ordered or purchased under these GTC are changed prior to shipment to the Customer in the case of Product, or supply in the case of Services of Software, WineCo shall notify Customer and Customer shall be alternatively entitled to (i) accept the changed Product, Software and Services or (ii) cancel its order as to the changed Product, Software or Services only and, if applicable, receive a refund of any amount or Fee paid to WineCo in advance for the order or purchase of the changed Product, Software or Services. THE FOREGOING SHALL BE THE CUSTOMER’S SOLE REMEDY FOR ANY CHANGES OF PURCHASED OR ORDERED PRODUCT, SOFTWARE OR SERVICES AND WineCo SHALL HAVE NO OTHER LIABILITY WHATSOEVER FOR ANY SUCH CHANGE.
VI. General provisions
17. Intellectual Property Rights
17.1 No Transfer
. Unless otherwise agreed in writing, nothing in the Agreement or these GTC shall be interpreted as the assignment and/or transfer of any intellectual proprietary rights from WineCo to Customer. WineCo retains all right, title and interest in and to the Software, Platform, databases, patents, trademarks, domain names, know how, confidentiality and/or business secrets, all intellectual property rights therein and all intellectual property rights in and to the Services, except only for Customer Materials and Third-Party Software.
17.2 The use of any Platform or Software embedding WineCo’s intellectual property rights shall require a valid license being granted to the Customer and being in force.
. Unless otherwise agreed in writing, any such license granted by WineCo to Customer on the Software and/or the Platform is a limited, non-exclusive, non-transferable license to use the Software/Platform solely in accordance with the respective intended use and instructions, without right to sub-license. Software or other delivered with or integrated in hardware products may solely be used in conjunction with such hardware products. Unless otherwise agreed in writing, Software are provided for the term stipulated in the Agreement and in the location indicated in the quotation for such Software or, if no such indication is made for the Software, for the hardware product that it is integrated with.
17.4 Authorised Users
. Depending on the type of License defined in the relevant Agreement, the rights granted by WineCo may be limited by a number of users.
. The Customer shall not copy, share, distribute, re-sell, offer for re-sale, transfer or sub-license Software in whole or in part and shall not attempt to modify, disassemble, decompile, or in any other way reverse engineer Software and shall prevent Third-Party access to Software.
. Customer expressly acknowledges that any infringement of WineCo’s intellectual property rights will cause irreparable harm to WineCo, for which monetary damages alone would be inadequate, and that WineCo may thus seek injunctive relief or any other remedy available at law in any jurisdiction, in case of such infringement.
17.7 In the event that all or part of the Services, Software, and/or Product, are subject of an action, claim or legal or administrative proceeding, due to the breach of any intellectual property right belonging to a Third-Party, or if WineCo considers there is a risk of such action, claim or legal or administrative proceeding, WineCo reserves its right to, defend, at its own expense, any such action, claim or legal or administrative proceeding brought against Customer. WineCo shall have sole control, in particular of any negotiation, compromise or settlement. WineCo may (i) obtain the right to continue supplying the Product, Platform, Services or Software to the Customer; (ii) replace or modify the Product, Services or Software concerned so that they no longer breach the intellectual property right in question; or (iii) stop supplying the Product, Platform, Services and/or Software or stop selling and/or distributing the Product, Platform, Services and/or Software concerned, and terminate the relevant Agreement.
18. Customer Materials
18.1 Customer Materials
. Customer shall provide WineCo with the documents, information and data required in any order form or subscription form, or as otherwise reasonably required by WineCo (Customer Materials
. As between the Parties, Customer Materials is and shall remain the sole and exclusive property of Customer. Nothing herein shall be construed or interpreted as a transfer of ownership in any Customer Material to WineCo.
18.3 License on Customer Materials
. Customer grants to WineCo a global, royalty-free, irrevocable, non-exclusive license to use the Customer Materials for the sole and exclusive purpose of providing the Services and/or other services, including a license to collect, process, store, generate, modify, and transfer the Customer Materials to Third-Parties only to the extent necessary to provide the Services and/or other related services, as well as to train algorithms using Customer Materials, only to the extent necessary to provide or improve the Services.
. Customer warrants that (i) it has valid grounds and, if required, it has obtained all authorisations and consents for the processing of any Customer Material within the frame of these GTC and (ii) Customer Material do not infringe on any law or regulation, these GTC, or any Third-Party rights.
. Upon termination of the agreement concluded under these GTC, WineCo shall, within reasonable time following a written request by Customer, provide Customer with a final extract of the Customer Material and permanently delete any copies of such Customer Material still under its control. In any case, WineCo shall be allowed to permanently delete Customer Material 60 days after termination or non-renewal of the Agreement.
19. Third-Party Software
19.1 Third-Party Software
. Software, Platform and their documentation may contain computer code, data, fonts, images, photographs or other digital items distributed and/or licensed by third parties (Third-Party Software
). If applicable, the terms and conditions associated with such Third-Party Software are provided to Customer upon Customer’s request, and Customer shall use such Third-Party Software under such terms and conditions. By signing the Agreement, Customer also accepts such terms and conditions.
. Customer shall bear sole responsibility for the use of Third-Party Software within the frame of the Services. Customer shall comply with all rights, obligations, conditions, policies laws and regulations pertaining to such Third-Party Software.
. Notwithstanding Section 27.2 GTC, WineCo reserves the right to immediately suspend or cease the provision of the Services, Software or the access to the Platform in case of any breach by Customer of Customer’s obligations under Section 19.2 GTC.
. Nothing in the Agreement or these GTC shall restrict, limit or otherwise affect any rights or obligations that Customer may have, or conditions to which Customer may be subject, under any applicable open-source licenses to any open-source code contained in the Software, the Services or the Platform.
20. Security and Data Protection
20.1 Data Controller
. Customer assumes the obligations and responsibilities of a data controller in connection with the processing of its Personal Data within the framework of the Services. WineCo assumes the obligations and responsibilities of a sub-contractor in relation to the processing of this Personal Data.
20.2 Processing of Data
. Any processing of the Customer’s Personal Data by WineCo within the framework of the Services or the Software, including any processing carried out by its possible subcontractors, is deemed to take place on the Customer’s order and is limited to the implementation of WineCo’s obligations under its contractual relationship with Customer. In this context, WineCo undertakes to comply with the applicable Swiss data protection legislation.
20.3 Customer’s Obligations
. Customer shall ensure, with respect to any Customer Personal Data processed by WineCo within the frame of the Services, if any, that such Customer Personal Data has been collected and transferred to WineCo in strict compliance with the applicable data protection or data privacy laws and regulations. In particular, Customer shall:
a) have, and maintain at all times, valid grounds for the processing of such Personal Data;
b) have adopted and implemented appropriate technical and organisational measures to protect such Personal Data; and
c) have complied and comply with all registration and/or notification requirement, if and as required under applicable data protection or data privacy laws and regulations, prior to granting WineCo access to such Customer Personal Data within the frame of the Services
. Customer shall bear sole responsibility for the processing of Customer Personal Data, if any, within the frame of the Services. Customer acknowledges and accepts that WineCo shall deem any processing of any Customer Personal Data within the frame of the Services, as permitted under these GTC, as well as any instructions by Customer with respect to such processing activities as compliant with applicable data protection or data privacy laws and regulations.
20.5 Transfer of Data
. By accepting these GTC, Customer expressly acknowledges and agrees that Customer Personal Data or usage data may be transferred to and processed on servers located outside of its jurisdiction, including in jurisdictions which may not have data protection and privacy laws and regulations equivalent to those in the Customer’s jurisdiction.
. WineCo may forward to Customer any request, investigation or other action by any supervisory authority and/or any Third-Parties (including data subjects), directed at WineCo with respect to the processing of any Customer Personal Data. If WineCo is required to undertake any compliance action itself, e.g. responding to a request by any supervisory authority or Third-Party and/or cooperating in investigations, and/or to provide assistance to Customer, Customer shall fully indemnify WineCo for its effort and costs, including reasonable attorney’s fees, incurred in such context. Requests, investigations, or actions relating to Personal Data relating to usage data shall be addressed by WineCo only.
20.7 Data Processing Agreement
. The Parties may agree in a separate agreement or contract or any other document to specific provisions regarding the processing of Customer Personal Data as part of the Services, the Platform or the Software, in which event such provisions shall have precedence over and supersede Section 20.2.
. WineCo reserves the right to record and monitor telephone calls for training and quality purposes.
. Unless otherwise agreed in writing, WineCo and Customer undertake (i) to ensure the confidentiality of the other Party’s Confidential Information; (ii) not to disclose the other Party’s Confidential Information to a Third-Party, other than its employees, agents or subcontractors that need to know the information in order to exercise the rights and fulfil the respective contractual obligations of the Parties; and (iii) only to use the other Party’s Confidential Information to exercise their rights and fulfil their respective contractual obligations.
. The Parties’ obligations regarding the Confidential Information shall remain in force for the entire duration of the contractual relationship with the Customer and/or for as long as the information concerned remains Confidential Information.
. Each Party also undertakes to ensure that these provisions are complied with by its personnel and by any Third-Party that might intervene in any way whatsoever in the exercise of its rights and performance of its contractual obligations.
. Subject to Sections 22.2 to 22.4 and 28.4, WineCo shall only be responsible for losses, damages or liabilities, caused to Customer due to a breach caused by a willful misconduct or gross negligence of its contractual obligations pursuant to these GTC and/or an Agreement, proof of which must be demonstrated by Customer.
. To the extent permitted by law, WineCo shall not be held liable for any claims, demands, losses, costs, or damages suffered by Customer, which may result from the use of the Product, Services, Platform and/or Software by the Customer or any Third Party, or any acts or omissions of any end-user of the Product, Platform or Software. Section 22.4 shall apply to any liability of WineCo.
22.3 Exclusion as to Data. Within the limits of applicable law, the liability of WineCo is expressly excluded in respect to these GTC and/or all Agreements and their performance, irrespective of the grounds of the Customer’s actions, claims or legal or administrative proceedings, including for consequential or indirect losses, damages or liabilities, in particular with regard to any operating loss, damage or destruction of data.
22.4 Capped Liability. Without prejudice to the foregoing, WineCo’s total liability and/or that of its directors, employees, agents and subcontractors per contractual year is in any cases limited to the lowest of the following amounts: (i) the annual average of the amounts actually paid by Customer for the Services, Software or Product concerned; or (ii) the total amount actually paid for the Services, Software, Platform or Product concerned, since entering into the relevant Agreement.
22.5 Catalogues. Within the limits of applicable law, catalogues, technical specifications, descriptions, illustrations and other documentation provided by WineCo and relating to the Services, Product or Software are for information purposes only and shall not constitute any representation or warranty of any kind.
. The exclusions and limitations under this Section 22 shall extend to WineCo’s directors, officers, employees, agents, representatives and auxiliaries.
23.1 As-Is. The Platform, Software, their functionalities and the Services are provided by WineCo to Customer AS IS and AS AVAILABLE.
23.2 Warranty on Products
. Notwithstanding Section 22 above and if Customer is a private individual and not a professional, WineCo warrants to Customer that the Products sold to Customer by WineCo shall not be affected of Defects as may be required for normal use for a warranty period of 2 year following the Delivery or collection of Product. In this case, WineCo’s sole liability under the warranty on the Product shall be, at WineCo’s option, to either (i) replace the defective Product(s) or (ii) refund or credit the corresponding Fee(s) to Customer. This Section 23.2 sets forth Customer’s exclusive remedy for a Defect and is subject to (i) timely notice in accordance with Section 11.7 GTC and (ii) the return of the concerned Product to WineCo in a timely manner, if wineco requires so. Any oral or written statement concerning the Product inconsistent with the limited warranty set forth herein or in the relevant Agreement shall be of no force or effect. Third-Party Software is expressly excluded of any warranty given by WineCo.
23.3 Same Vintage. In case Customer has purchased several Products of the same vintage and considers the Product is faulty upon opening one Product, it is Customer’s responsibility to ensure that it mitigates any loss by keeping the remaining Products unopened in their packaging until WineCo informs it whether or not WineCo requires it to return them to WineCo. WineCo reserves the right to charge Customer for any additional Product opened by Customer.
23.4 Corking, Age, Provenance
. Customer acknowledges that due to the nature of Products, WineCo has not the ability to ensure that a Product will not be corked of affected of similar Defects due to its nature, its age or its provenance. Customer acknowledges that Products may be subject to normal wear and tear associated with their nature, and that they will be of condition to be expected in view of their age and provenance. WineCo SHALL NOT BE LIABLE FOR MINOR DEFECTS OR IMPERFECTIONS OR ANY CONDITION RESULTING FROM NATURE, PROVENANCE OR AGE OF THE PRODUCT. CUSTOMER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WineCo DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO CORKING OR SIMILAR DEFECTS AFFECTING PRODUCTS AND THAT IT DECLINES ALL LIABILITY IN THIS RESPECT.
. WineCo does not warrant the taste of Products, or that Products will be at Customer’s liking and assumes no liability in this regard.
23.6 No Extension
. A replacement of Product in accordance with Section 23.2 above, shall under no circumstances give rise to a new warranty period, or an extension or suspension of the initial warranty period set forth in Section 23.2 above. WineCo shall acquire ownership of all replaced or reimbursed Product. The warranty is likewise not extended for periods in which the Product are not used or placed into storage in Cellars.
23.7 Further Exclusions
. The warranty provided under Section 23.2 above, covers Products within the meaning of these GTC exclusively. In addition, WineCo shall have no warranty obligation whatsoever with respect to any damage to Products caused by or associated with: (i) usage not in accordance with the Product or Software Instructions for Use or prescriptions, for a purpose not indicated on the Instructions for Use, instruction for storage, prescriptions or labelling; (ii) abuse, misuse, neglect, improper maintenance or storage, accident, vandalism, or the negligence of any party other than wineco; (iii) external causes, including natural disasters, acts of God, power failure, cosmetic damage or melting; (iv) use of unauthorised Third-Party consumables and accessories with the Product; or (v) modifications or alterations to Product, Platform or Software not expressly authorised in writing by WineCo. wineco’s obligations under this limited warranty are also contingent on the Customer’s payment in full of the applicable Fees. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WineCo EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, AND WineCo DOES NOT REPRESENT OR WARRANT THAT ANY MATERIAL SHALL MEET CUSTOMER’S REQUIREMENTS
23.8 THE EXPRESSED WARRANTIES AND REMEDIES STATED IN THESE GTC SHALL BE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS, AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE, USAGE, COURSE OF DEALING OR OTHERWISE, ALL OF WHICH ARE EXCLUDED HEREWITH TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
24.1 Customer defends and indemnifies WineCo against any damage or prejudice and against any action, lawsuit or judicial or administrative procedure of a Third-Party or authority and resulting from the breach by Customer of any of its commitments under these GTC and/or an Agreement in which these GTC are incorporated by reference, including for its attorney’s fees and costs of proceedings.
24.2 If such an action, suit or proceeding is brought against WineCo, WineCo will notify Customer as soon as possible and allow Customer to take control of its defense, at its own expense, and to settle such action, suit or proceeding by way of settlement, without however allowing Customer to accept any liability on the part of WineCo.
25. Independent Contractors
Nothing in any Agreement shall be construed as creating any joint venture or legal partnership as between the Parties or enabling either Party to act as the representative of the other Party.
26. Compliance with Laws
For each Agreement, Customer warrants that it (i) has obtained all internal and external authorizations that may be required and (ii) is not in breach of any contractual, legal or regulatory obligations by entering into such an Agreement.
27. Term and Termination
.Unless agreed otherwise in writing, each Agreement shall enter into force as of its execution date (the Effective Date
) and shall remain in full force until expiration of the term set forth in the Agreement, unless such term shall be coordinated with the nature of the provision of Services and/or the sale or distribution of Product.
27.2 Termination for Cause
. Each Party may individually terminate one or more Agreements in writing with immediate effect, in the event of material breach by the other Party of its obligations pursuant to the applicable Agreement, which the latter has not remedied within 30 days of receiving a written notification containing a reasonably detailed description of the contractual breach. In such a case, all the other rights and claims of the Party having terminated the Agreement in question shall continue to apply. WineCo shall notably have the right to terminate any Agreement with immediate effect shall the Customer become insolvent, or subject to levy of execution or seizure measures.
27.3 Consequences of Termination
. Upon expiry or termination of the Agreement according to the Agreement or to Sections 7.9, 10.2, 17.7, 27.2 or 28.4 of these GTC, all Confidential Information of WineCo, including Software, and any copies thereof shall be returned to WineCo at WineCo’s request or permanently destroyed or deleted from any support of Customer immediately. Customer may keep any purchased Product but shall no longer be entitled to benefit from any potential upgrade, improvement or new release, nor shall it continue to benefit from maintenance and support agreements, if subscribed. All Fees already paid by Customer shall remain acquired to WineCo and are not reimbursable to Customer, except as provided in Section 15 GTC. Customer shall immediately pay all outstanding amount due to WineCo.
. WineCo may amend these GTC at any time by written notice (including by e-mail) to Customer. Any amendment shall come in effect as of the next term or as otherwise agreed by the Parties.
28.2 Entire Agreement
. The Agreement, its annexes and appendices, and these GTC contain all of the terms and conditions agreed upon by the Parties relating to its subject matter and supersedes all prior agreements, negotiations, correspondence, undertakings and communications of the Parties, whether oral or written, with respect to such subject matter.
. If any provision of these GTC is held to be invalid or unenforceable for any reason, the remainder of these GTC shall continue in full force and effect as if these GTC had been performed without the invalidated provision. The Parties agree to substitute for the invalidated provision a valid provision that most closely approximates the intent and economic effect of the invalidated provision.
28.4 Force Majeure
. The obligations of the Parties shall be suspended by the occurrence of any Force Majeure event. In such cases, time for Delivery or payment shall be extended by a reasonable period and either Party may have the right to terminate this Agreement in the event of prolonged delay that may not be cured within a reasonable time period.
28.5 No Waiver
. The failure of either Party to enforce any of the provision of these GTC or any rights thereunder shall in no way be considered as a waiver of such provisions or rights.
. Neither these GTC nor any of the Customer’s rights or obligations hereunder, may be assigned, transferred or sublicensed by Customer to any Third-Party, without WineCo’s prior written consent. Any such purported assignment, transfer or sublicense shall be null and void. WineCo may assign and transfer all or part of these GTC, or of any of its rights or obligations hereunder, to any of its Affiliates.
28.7 No Third-Party Beneficiaries
. These GTC shall be binding and inure solely to the benefit of the Parties (and their respective lawful successors and assigns). Nothing in these GTC is intended to or shall confer upon any Third-Party any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
29. Governing Law and Jurisdiction
29.1 Governing Law
. Unless otherwise agreed in writing, these GTC, the Agreements concluded under these GTC and all disputes arising therefrom shall be governed by and construed in accordance with Swiss substantive law to the exclusion of the Vienna Convention on Contracts for the International Sales of Goods (CISG) and the conflict-of-law rules of Swiss international private law.
. Unless otherwise agreed in writing, any claim, dispute, difference, controversy or litigation arising out or in connection with these GTC or the Agreements concluded under these GTC, or the breach thereof, including disputes concerning the valid conclusion, legal effects, amendment and/or termination of such Agreements, shall be referred to the competent courts of WineCo’s registered office, save an appeal to the Federal Tribunal. WineCo shall also have the right, but not the obligation, to bring action against Customer at any other legally available place of jurisdiction.