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| Conditions of Use Welcome to NapaCabs. Services to you are subject to the following conditions. If you visit or shop at NapaCabs, you accept the terms and conditions of this Agreement. If you do not accept these terms and conditions please do not use our services. Please read them carefully. Before you may become a member of NapaCabs, you must read and accept all of the terms and conditions in this User Agreement and linked Privacy Policy. We strongly recommend that, as you read this User Agreement, you also access and read the linked information. By accepting this User Agreement, you also agree that your use of some NapaCabs-branded websites or websites we operate may be governed by separate user agreements and privacy policies. The agreement that applies on any of our domains and sub-domains is always the agreement that appears in the footer of each website. We may amend this Agreement at any time by posting the amended terms on our site. The amended terms shall automatically be effective 30 days after they are initially posted on our site. This Agreement may not be otherwise amended except in a writing signed by both parties. This agreement was revised on July 5th, 2008. This agreement is effective July 5th, 2008 for new registering users, and is otherwise effective on July 5th, 2008 for all users registered on or before July 5th, 2008. 1. Membership Eligibility Our services are available only to, and may only be used by, individuals who are 18 years of age or above and who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to persons under 18 years of age or to temporarily or indefinitely suspended NapaCabs members. If you do not qualify, please do not use our services. Further, your NapaCabs account (including feedback) and User ID may not be transferred or sold to another party. If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. NapaCabs does sell products for children, but it sells them to adults, who can purchase with a credit card. If you are under 21, you may use NapaCabs only with involvement of a parent or guardian to purchase non-alcohol gifts and accessories. NapaCabs and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion. 2. Fees Joining NapaCabs and bidding on items is free. Our Fees and Credits Policy forms part of this Agreement. We may change this policy at any time, and any change will be effective after the expiry of 14 days following the date of posting on the Announcements Board (or such later date as we may notify). Unless otherwise stated, all fees are payable in US Dollars. Whether you are a business or not, value added tax and other taxes may apply to your transaction. Sellers will be responsible for paying all fees associated with using our service and our Web site and all applicable taxes. 4. NapaCabs is not an Auctioneer 4.1 Online Auctions Although we are commonly referred to as an online auction Web site, it is important to realize that we are not a traditional "auctioneer". Instead, our Site acts as a venue to allow members to offer, sell, and buy just about anything, at anytime, from anywhere, in a variety of formats, including a fixed price format, venues (such as stores), and an auction-style format commonly referred to as an "online auction". We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items or content posted by users on the Site, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure and do not guarantee that a buyer or a seller will actually complete a transaction. 4.2 Safe Trading Because user authentication on the Internet is difficult, NapaCabs cannot and does not confirm each user's purported identity. Thus, we have established a user-initiated feedback system to help you evaluate the user you are dealing with. We also encourage you to communicate directly with potential trading partners through the tools available on our Site. You may also wish to consider using a third party escrow service or services that provide additional user verification. 4.3 Release Because we are not involved in the actual transaction between buyers and sellers, in the event that you have a dispute with one or more users, you release NapaCabs (and our officers, directors, agents, affiliates, parents, subsidiaries and employees) from claims, demands and damages (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 4 .4 Information Control We do not control the information provided by other users which is made available through our system. You may find other users' information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using our Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks with international trading and dealing with foreign nationals. 4.5 Product Descriptions NapaCabs and its affiliates attempt to be as accurate as possible. However, NapaCabs does not warrant that product descriptions or other content of this site is accurate, complete, reliable, current, or error-free. If a product offered by NapaCabs itself is not as described, your sole remedy is to return it in unused condition. 5. Bidding and Buying You are obligated to complete the transaction with the seller if you purchase an item through one of our fixed price formats or are the highest bidder as described below. If you are the highest bidder at the end of an auction (meeting the applicable minimum bid or reserve requirements) and your bid is accepted by the seller, you are obligated to complete the transaction with the seller, unless the transaction is prohibited by law or by this Agreement. By bidding on an item you agree to be bound by the conditions of sale included in the item's description so long as those conditions of sale are not in violation of this Agreement or unlawful. Bids are not retractable except in exceptional circumstances such as when the seller materially changes the item's description after you bid, a clear typographical error is made, or you cannot authenticate the seller's identity. If you choose to bid for materials for mature audiences or those restricted to use by adults, you are obliged to guarantee that you have the legal right to purchase items under this category. Recipient MUST by law sign for delivery. A valid picture ID must be provided. When your wine or cigars are delivered to you, you will be required to show identification proving that you are at least 21 years old. All orders legally require: Drivers License, Military, Passport, or State ID. 6.Listing and Selling The Buyer and Seller of all alcoholic beverages is representing that he/she is acting in compliance with his/her local and state laws regarding the purchase, transportation and delivery of wine. The purchaser represents that he/she has obtained any required permission, paid any required fees, is working through properly licensed intermediaries where required, is legally entitled to take possession of wine and is legally entitled to take quantities ordered. If you would like to list and sell your wines, you must legally be permitted or licensed to sell wine to use NapaCabs selling and listing services. Laws on selling and buying alcohol vary by State, county, and jurisdiction. Napacabs does not represent that you can legally sell, buy and ship wine in your jurisdiction or with buyers outside your jurisdiction. You must comply with your jurisdiction's rules for selling wine. Contact your State's alcoholic beverage control department to obtain any required licenses. You are responsible to investigate and complying with all laws of your jurisdiction; obtaining any required permits and licenses and paying all related taxes and fees in order to legally use our services. 6.1 Listing Description You must be legally able to sell the item(s) you list for sale on our Site. You must describe your item and all terms of sale on the listing page of our Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed items must be listed in an appropriate category. At any one time you may newly list a maximum of 3 identical items on NapaCabs. Although the listing end times may be different, on one single day, you may only list a maximum of 6 identical items in all sections of NapaCabs. 6.2 Binding Bids Except for items to which the Non-Binding Bid Policy applies, if you receive at least one bid at or above your stated minimum price, you are obligated to complete the transaction with the highest bidder upon the item's completion, unless there is an exceptional circumstance, such as: a. the buyer fails to meet the terms of your listing (such as payment method); or b. you cannot authenticate the buyer's identity. 6.3 Fraud If NapaCabs suspects that you (by conviction, settlement, insurance or escrow investigation, or otherwise in our sole discretion) have engaged in fraudulent activity in connection with our Site, we may suspend or terminate your account with the exception of other remedies. 6.4 Shipping NapaCabs Service Limited To Certain States: NapaCabs Sales and related Shipments of Wine: All wines are sold in CA, and title passes to the buyer in CA. We make no representation to the legal rights of anyone to ship or import wines into any state outside of CA. The buyer is solely responsible for the shipment of wines. By placing an order, you authorize us to act on your behalf to engage a common carrier to deliver your order to you. Most wine orders are shipped within 1-3 business days, not including holidays or weekends. Because of the potential heat exposure, during warm weather conditions, we will hold purchased wines at no additional cost until temperature condition are more suitable for shipping. Therefore, selecting a shipping option of Next day, 2nd Day or 3-Day Select only represents the minumum business days that the package will be in transit. During warm weather, we will hold orders until conditions improve. If recipient is found to be under the age of 21, all packages will be returned to us. No refund will be allowed.If shipper can not make a delivery because no one is home, your package will be held up to 3 days at the shipper warehouse. You can pick it up there under the same conditions listed above. Shipping cost if not displayed on a NapaCabs offering, will be paid by buyer and calculated on the final invoice, FedEx and UPS rates based upon weight, shipping address, packaging and adult signiture, rates will be the same as if purchased at NapaCabs.com. 6.5 Napacabs provides an opportunity to purchase wines from exclusive wineries which do not produce and ship large quantities. NapaCabs will arrange for shipment on behalf of our customer, to an address specified by our customer, provided that NapaCabs in its sole judgement believes that such shipment will not subject NapaCabs to the risk of any sort of legal action or other harm. If a customer lives in a state where the direct shipment of wine by NapaCabs violates the law, we suggest that the customer provide an alternative address in another state or have their wine shipped to a third-party storage facility in a direct shipping-friendly state. As a service to our customers, you may temporarily store wines (1 to 20 days) at our temperature and humidity controlled warehouse or we can also ship to the following facilities, which are not affiliated with NapaCabs. We do not provide an endorsement of any facility and we recommend that you contact the facility directly to determine if their costs and services meet your needs. Third party storage facilities: Fifty-Five Degrees (St Helena, California -- 707-963-5513) We will hold wines for customers for up to 20 days at no charge, for storage in excess of twenty days please contact us at 909-548-2888 for pricing. 6.6 Manipulation. Neither you, nor any other bidders or sellers may manipulate the price of any item, nor may you interfere with other users' items listed for sale 7. Your Information When you visit NapaCabs or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. 7.1 Definition "Your Information" is defined as any information you provide to us or other users in the registration, bidding or listing process, in any public message area (including NapaCabs Café or the feedback area) or through any email feature. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. 7.2 Restrictions Your Information (including but not limited to any items listed) must not: 1. be false, inaccurate or misleading; 2. be fraudulent or involve the sale of counterfeit or stolen items; 3. infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; 4. violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination and inaccurate advertising); 5. be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; 6. be obscene or contain child pornography; 7. contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; 8. create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and link directly or indirectly to or include descriptions of goods or services that: a. are prohibited under this Agreement; b. are identical to other items you have up for auction but are priced lower than your item's reserve or minimum bid amount; c. are concurrently listed for sale on a Web site other than NapaCabs's (this does not prevent linking to or advertising a NapaCabs item from another Web site); or you do not have a right to link to or include. e. you may not advertise any web site. Furthermore, you may not list any item on our Site (or complete any transaction that was initiated using our service) that, by paying to us the listing fee or the final value fee, could cause us to violate any applicable law, statute, ordinance or regulation. 7.3 License Visitors may post reviews, comments and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. NapaCabs reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content. 7.4 Reviews, Comments, Communications and other Content If you do post content or submit material, and unless we indicate otherwise, you grant NapaCabs a nonexclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant NapaCabs and its affiliates and sub-licensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify NapaCabs for all claims resulting from content you supply. NapaCabs has the right but not the obligation to monitor and edit or remove any activity or content. NapaCabs takes no responsibility and assumes no liability for any content posted by you or any third party. 8. Access and Interference Our Site contains robot exclusion headers and you agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our Web pages or the content contained herein without our prior expressed written permission. You agree that you will not: * use any device, software or routine to bypass our robot exclusion headers, or to interfere or attempt to interfere with the proper working of our Site or any transaction being conducted through our Site; * take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Much of the information on our Site is updated on a real time basis and is proprietary or is licensed to NapaCabs by our users or third parties; * copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for Your Information) from our Site without the prior express written permission of NapaCabs or the appropriate third party authorized to grant such permission. 9. Feedback You may not take any actions that may undermine the integrity of the feedback system. If your feedback is negative we have the write to suspend your membership and you will be unable to list or bid. 9.1 Export. You acknowledge that your feedback consists of comments left by other users and a composite feedback number compiled by NapaCabs, and that the composite number without the comments does not convey your full user profile. Because feedback ratings are not designed for any purpose other than for facilitating trading between NapaCabs users, you agree that you shall not market or export your NapaCabs feedback rating in any venue other than a NapaCabs operated Web site. 9.2 Import. We do not provide the technical ability to allow you to import feedback from other Web sites to NapaCabs because a composite number, without the corresponding feedback does not reflect your true online reputation within our community. 10. Breach Without limiting other remedies available to NapaCabs at law, in equity or under this Agreement, we may, in our sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: 1. you breach this Agreement or the terms and policies those documents incorporate by reference; 2. we are unable to verify or authenticate any information you provide to us; or 3. we believe that your actions may cause legal liability for you, our users or us. 11. Privacy We use third parties to verify and certify our privacy principles. These third parties dedicate to requesting their member corporations, such as NapaCabs, to disclose information operation routines in order to establish network credibility. The Privacy Policy of NapaCabs is classified as high level by these independent third parties. Refer to http://auction.NapaCabs/privacy.asp for the current Privacy Policy of NapaCabs. 12. No Warranty WE AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES ON AN "AS IS" BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ANY IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS (WHETHER IMPLIED BY VIRTUE OF LEGISLATION OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY TERMS RELATED TO ACCURACY RELATED TO TECHNICAL, CAUTIOUS AND FUNCTIONAL ASPECTS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. 13. Liability Limit 13.1 IN NO EVENT SHALL WE, OUR AFFILIATES AND RELATED ENTITIES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE LIABILITY OF WE AND OUR AFFILIATES AND RELATED ENTITIES OR OUR SUPPLIERS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF: 1. THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY; AND 2. US$100. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SUPERVENING OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. 14. Indemnity You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable solicitors' fees, made by any third party due to or arising out of your breach of this Agreement or the terms and policies it incorporates by reference, or your violation of any law or the rights of a third party. 15. Legal Compliance You shall comply with all applicable domestic (including common law) and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items. 16. No Agency You and NapaCabs are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. 17. Notices Except as explicitly stated otherwise, any notices shall be given by post to NapaCabs International A.G., forward by NapaCabs, address: Legal Department, 2145 Hamilton Ave., San Jose, CA 95125 (in the case of NapaCabs), or to the email address you provide to NapaCabs during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified airmail, postage prepaid and return receipt requested, to the address provided to NapaCabs during the registration process, or as updated by you as relevant. In such case, notice shall be deemed given three days after the date of mailing. 18. Resolution of Disputes By visiting NapaCabs, you agree that the laws of the state of California, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and NapaCabs. If a dispute arises between you and NapaCabs, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and NapaCabs agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to the Customer Support help page. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Any dispute relating in any way to your visit to NapaCabs or to products you purchase through NapaCabs shall be submitted to confidential arbitration in Chino, California, except that, to the extent you have in any manner violated or threatened to violate NapaCabs's intellectual property rights, NapaCabs may seek injunctive or other appropriate relief in any state or federal court in the state of California, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. 19. California Sales Tax All alcoholic beverages shipped to any California and California, San Bernardino County addresses are subject to California sales tax of 7.25% and 7.75%, respectively. |