Terms of Service for Contracted Clients

Effective 2022-05-18

Preamble

Gliding Eagle Wine Services ("GEWS") is a part of Gliding Eagle Inc. ("GEI"), a corporation registered in California, USA.

GEWS provides technology and Intl Direct-To-Consumer (DTC) related compliance and logistics services (the "Services") to enable wineries, merchants, and private clients (the "Customers") to track and deliver wine-related products (the "Products") to end consumers located in international destinations.

Gliding Eagle means either or both GEI and GEWS. Gliding Eagle, GEI, and GEWS may be used interchangeably in this Agreement.

Once the Customer signs a Subscription Service Order Form with Gliding Eagle to utilize the Services, the Customer is considered a Contracted Client (the "Client"). Both Gliding Eagle and the Client agree on the terms outlined below.

Section headings are for reference purposes only.

1) Scope of Services

1.1 Services

Gliding Eagle provides the Services in accordance with the terms and conditions set forth in this agreement. The Services include Gliding Eagle's end-to-end management of Client's wine shipments to their customer as further described in Section 1.1.1, including (a) as applicable, facilitating the pickup of Product from Client's facilities to Gliding Eagle's facilities ( "Facilities"); (b) labeling, packaging, and shipping Product to end customer using a common carrier; and (c) facilitating the compliance process including the customs clearance. Gliding Eagle may use third parties to support the performance of Services (for example, third-party customs brokers). The Client will place orders for the Services ( "Orders") as described in Section 1.1.1.

All orders processed by Gliding Eagle are for intended personal consumption or samples only, unless specifically requested by the Client for other purposes and agreed upon by Gliding Eagle as exemptions. End customers are not permitted to resell any product shipped under this agreement unless specifically requested by the Client for other purposes and agreed upon by Gliding Eagle as exemptions.

The Client agrees to provide all requested and relevant information to Gliding Eagle for processing the Orders and performing Services in good faith. Gliding Eagle is not responsible for customs clearance and final delivery issues due to erroneous information supplied by the Client or the end customer, i.e., contact information, Product information with value declarations, and stated purpose.

1.1.1 Order Process

Here is the general outline of the ordering process. For the entire process description, review this Knowledgebase article.

An end customer wishing to ship Product internationally places an Order with the Client, either in-person at a Client winery or other retail location, via telephone, email, or on the Client's website.
When an end customer places an Order for an international shipment, the Client will either (a) get a quote using Online Services (Section 1.4) and collect Gliding Eagle's then-current service fees (the "Price") for the shipment (a "Reimbursable Sale") or (b) provide the end customer with a link to Gliding Eagle's online application (Section 1.4) to enable the end customer to purchase the Services directly (a "Direct Sale").
The Client will submit all information relevant to processing the Order using Oline Services (Section 1.4) or email.
Gliding Eagle will invoice the Client for all applicable Service fees for Reimbursable Sales. The Client will pay all invoices as outlined in Section 2.
GEWS will facilitate a courier pickup of Products (and associated Order information, to the extent not already provided) for delivery to the Facilities.
GEWS will process and package the Product for shipment overseas. GEWS will be responsible for the following activities to ensure successful delivery to the end consumer cross-border:

Inspecting Products for damage
Labeling Products with the Gliding Eagle authenticity labels
Packaging Products
Coordinating shipment via common carriers (e.g., FedEx)
Completing and filing all required export/import compliance paperwork
Facilitating the customs clearance process through GEWS's third-party customs clearance broker
Managing last-mile delivery via local common carrier when necessary
Obtaining shipping insurance as required by Section 1.7
Communicating global tracking information via the Online Services in Section 1.4

1.2 No Delivery Guarantee

While Gliding Eagle uses reasonable efforts to meet the Client's shipping and delivery schedule set forth in an applicable Order, Gliding Eagle does not guarantee any Product delivery or shipment times.

1.3 Customs Clearance

GEWS is responsible for completing and filing any required compliance paperwork in good faith using the information provided by the Client and the end customer, i.e., export declarations, import clearance paperwork, or other communications required by government agencies (including customs authorities) in connection with each Order.

GEWS is also responsible for facilitating the payment of any customs duties, import fees, or applicable taxes on the Client's behalf (in countries that legally permit GEWS to do so). The end customer will be responsible for and will pay all sales and customs clearance-related taxes and fees, all license fees, and similar fees levied upon the provision of the Services provided by GEWS when deemed necessary by law and local regulations.

The Client acknowledges that customs clearance depends on factors outside of GEWS's control, including the customs agency's regulations, holiday schedules, and processing times. Thus, GEWS is not responsible for any delays resulting from these factors outside of GEWS's control.

1.4 Online Services

1.4.1 User Access

When appropriate, Gliding Eagle provides the Client and end customers (the "Users") with access to use Gliding Eagle's websites and online applications, Intl DTC App, Eagle Verify, and Eagle View ("Online Services") for accessing relevant information, getting a quote and placing the order, tracking and authenticating the Products being delivered.

1.4.2 Intellectual Property

Gliding Eagle or its applicable licensors own all the rights, title, and interest to the Online Services and any related intellectual property ownership and rights.
All Product information, tracking information, logos and images, tasting notes, and other contents featured on the Online Services are provided to the Users for informational purposes only. The Client and any appropriate third parties retain any existing legal ownership and rights to the contents presented by the Online Services, i.e., product images and information, winery images and information. The Client grants Gliding Eagle the right to use these contents on the Online Services to present relevant information to the Users.

1.4.3 User Privacy and Data Security

All users using Gliding Eagle's websites and online applications are expected to read and agree to the standard Gliding Eagle Online Privacy Policy Agreement.
Gliding Eagle's policy and practices for data security are presented online.

1.5 Trade License

The Client grants Gliding Eagle a fully-paid, royalty-free, worldwide, non-exclusive, non-transferable, and non-assignable license to use the Client's domain names, trademarks and logos, and other branding elements ( "Marks") as provided by the Client for the sole purpose of performing the Services. Gliding Eagle will use the Marks in conformance with any of the Client's trademark usage policies. All rights, title, and interest in the Marks will remain with the Client, and any benefits accruing from the use of such Marks will automatically vest in the Client. Gliding Eagle will cease use of the mark upon client request or upon the termination of the Service Agreement.

1.6 Damage and Risk of Loss

1.6.1 GEWS is responsible for

Any risks of breakage or loss to Products, except for those listed in Section 1.6.1, during the product delivery on common carriers from the GEWS Fulfilment Center to the end international customer (the "Shipment"), will remain with GEWS. In the event any Product is lost or broken during Shipment, except for those listed in Section 1.6.1, GEWS will reimburse the end recipient up to 100% of the cost of the damaged Product (declared value) and, at the recipient's election, either (a) reship replacement Product to the end customer at no additional cost, or (b) provide the recipient with a refund of any shipping fees paid by Client or end customers for such damaged Product. THE FOREGOING REMEDY WILL BE THE CLIENT'S SOLE AND EXCLUSIVE REMEDY, AND GEWS'S SOLE AND EXCLUSIVE OBLIGATION, WITH RESPECT TO ANY DAMAGE TO PRODUCTS THAT OCCURS DURING SHIPMENT.

1.6.2 Gliding Eagle is NOT responsible for

Title to the Products and related materials will remain at all times with the Client until delivery to the end customer. Gliding Eagle, as a “freight forwarder,” does not take title to the Products while facilitating the delivery of these Products to the end consumer. Gliding Eagle does not take the title of the Products while stored at GEWS Facilities, thus not responsible and not held liable for any loss or damages for them while stored at the facility. Any Products stored at GEWS Facilities not claimed for more than 120 days will be destroyed. GEWS will notify customers of 30, 60, and 90-days reminders as goodwill and courtesy.
In the event the customs or the customs broker agency takes the Product, Gliding Eagle is only responsible for the shipping related costs. For example, the Client will provide replacement wine for GEWS to ship to the customer, and GEWS will cover the shipping costs of the replacement product.
Gliding Eagle is not responsible for any issues reported by the Client or the end customer after 21 days from the date the shipment is marked as Delivered by the common carrier.
Gliding Eagle is not responsible for any temperature-related damages.
Gliding Eagle is not responsible for customs clearance and final delivery issues due to erroneous information supplied by the Client or the end customer, i.e., contact information, Product information with value declarations, or stated purpose.

1.7 Insurance

The Client will maintain commercial general liability and all risk property insurance for the Products in an adequate amount to fully protect the Client's property against any loss or damage while in transit to and at any Fulfillment Center, including GEWS's facilities. The Client's insurance will name Gliding Eagle as an additional insured.
GEWS will maintain carriage insurance for Products during Shipment on a per-Order basis in an amount adequate to comply with its obligations described in Section 1.6.
Each party will provide the other party with evidence of the insurance coverage described in this Section 1.7 at the other party's request.

2) Fees and Payments

2.1 Subscription Fees

The monthly subscription fees paid by the Contracted Client are part of the Service Agreement agreed upon and signed by both Gliding Eagle and the Client.
The Client agrees to pay monthly subscription fees to Gliding Eagle in Net 15 terms upon receiving the invoice.

2.2 Services Fees

Gliding Eagle may update Service fees pricing at any time without further action required by either party. Any pricing changes will be made based on costs including but not limited to technology development, staffing, maintaining facilities, insurance, and any upstream costs from packaging and carrier providers or customs duties, taxes, and related fees.
The Service fees are calculated and quoted using Gliding Eagle Online Services (Section 1.4). Gliding Eagle will honor previous price quotes within 30 days of any price adjustments for Contracted Clients.
The Client agrees to pay Services fees to Gliding Eagle due upon receipt of invoices.

2.3 Payments and Overdue

All payments due under this Agreement will be made in U.S. Dollars.
Any interests on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Gliding Eagle reserves the right to withhold the Services (including access to Online Services) if fees become 15 days or more past due. If the Client fails to pay the Fees on time, the Client will be responsible for reimbursing Gliding Eagle for all reasonable collection and legal expenses, including penalties and interests.

3) Term; Termination

The term of this Agreement will commence on the Effective Date and continue in full force and effect until terminated by a party under this Section 3. Either party may terminate this Agreement at any time, with or without cause, with a 30-day prior written notice to the other party. Gliding Eagle may terminate this Agreement effective immediately with written notice to the Client if Gliding Eagle determines in good faith that a change in applicable export law or customs regulations makes Gliding Eagle's performance of the Services unlawful or otherwise prohibited under applicable U.S. or foreign law.

In the event of termination, (a) the parties will mutually agree to the orderly transfer and relocation of the Products from the Facilities and the terms and conditions for such transfer, including associated costs (provided that the breaching party will be responsible for such costs in the event of a termination by one party due to the other party’s material breach of this Agreement); and (b) Gliding Eagle will provide Services to complete the Shipment of any Product that has already left the Facilities by a common carrier.

The following Sections survive termination or expiration of the Agreement: Sections 2, 3, 4, 5, and 6.

4) Limited Warranty

Gliding Eagle represents and warrants that all Services will be performed by GEWS in a professional and workmanlike manner. THE CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT THE CLIENT'S USE OF THE SERVICES (INCLUDING ONLINE SERVICES) IS AT THE CLIENT'S SOLE RISK AND THAT THE SERVICES (INCLUDING ONLINE SERVICES) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND.

5) Client Warranty and Indemnification

The Client represents and warrants that it has the right to provide Gliding Eagle with any end-customer personal information (including name, address, phone number, email address, payment information, etc.) provided by the Client to Gliding Eagle under this Agreement. The Client will indemnify, defend and hold harmless Gliding Eagle to the maximum extent allowed by law from and against all claims, damages, demands, fines, liabilities, litigation or similar actions, losses and penalties, and any associated expenses (including reasonable attorneys' fees) arising out of or in connection with (a) any claim or allegation that the use of the Products or any portion of the Products caused or resulted in any third-party injury, loss, or damage; (b) any claim or allegation that the Products or any portion of the Products (including packaging) infringe third-party copyright or trademark right, or misappropriates a third person's trade secret; and (c) any breach or alleged breach of the representation and warranty set forth in this Section 5.

6) Limitation of Liability

OTHER THAN CLAIMS ARISING OUT OF A PARTY'S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT OR A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7: (A) THE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT WILL BE LIMITED TO ACTUAL DAMAGES, THE AGGREGATE AMOUNT OF WHICH WILL NOT EXCEED THE AMOUNT OF AGGREGATE FEES PAID OR TO BE PAID BY CLIENT TO GLIDING EAGLE UNDER THIS AGREEMENT; AND (B) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, OR LOST DATA, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY.

7) Confidentiality

Each party ( "Discloser") may provide to the other ( "Recipient") certain information and materials concerning the Discloser that are confidential and of substantial value to Discloser, which value would be impaired if disclosed to third parties ( "Confidential Information"). The recipient will not use or disclose Confidential Information other than to fulfill its obligations under this Agreement. The recipient will take commercially reasonable precautions to protect the confidentiality of Confidential Information and will require employees or third-party agents who have access to Confidential Information to abide by the terms of this Section 7.

Recipient's obligations of confidentiality will not apply to information that: (a) was already known to Recipient, other than under an obligation of confidentiality, at the time of disclosure by the Discloser; (b) was generally available to the public or otherwise part of the public domain after its disclosure other than through any act or omission of Recipient, or (c) was developed independently by Recipient without any use of or reliance upon Confidential Information. If the Recipient is required to disclose Confidential Information by applicable law or proper legal, governmental or other competent authority, the Recipient will (to the extent legally permitted) notify the Discloser of the disclosure in advance. Upon termination of this contract, all confidential information pertaining to the Client will either be destroyed or returned to the Client within 30 days.

8) Miscellaneous

8.1 Assignment

Neither party may assign or transfer this Agreement or any of its rights or obligations under this Agreement without the other party's prior written consent, provided that Gliding Eagle may assign this Agreement without the Client's consent in connection with the sale of all or substantially all of its assets or business related to this Agreement, or a sale or other transfer of a controlling interest of Gliding Eagle or to any affiliate of Gliding Eagle, in each case whether by merger, change of control, operation of law, reorganization, consolidation, sale of securities, or other legal means. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.

8.2 Dispute Resolution

This Agreement will be governed in all respects by the laws of the State of California without regard to its conflict of laws provisions. Both parties agree to submit to the exclusive jurisdiction of the state and federal courts located within Napa County, California, to resolve any legal matter arising under this Agreement.

8.3 Notice

Any notice under this Agreement must be in writing and will be effectively received: (a) immediately upon delivery or successful electronic transmission to the party to be notified; (b) one day after deposit with a commercial overnight courier with tracking capabilities; or (c) five days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid.

8.4 Modifications and Updates

Gliding Eagle may need to update or modify this Agreement from time to time to accurately reflect our services or to comply with applicable legal and administrative requirements. Gliding Eagle reserves the right to do so without the Client's express prior consent. Unless otherwise required by law, Gliding Eagle will notify the Client before making any substantial changes to this Agreement so that the Client has the opportunity to review any such changes before they take effect (such notice setting out any changes or modifications to this Agreement, a “ Change Notice”).

However, once any updated terms are made effective by the passage of time set out in such Change Notice, or if no time is stipulated, by the elapse of a reasonable period of time, the Client will be bound by all such changes and modifications to this Agreement should the Client continue to use Gliding Eagle's Services. The Client's continuing use of the Services means the Client has agreed to any changes or modifications to this Agreement. The Client also can also choose to terminate this Agreement as stipulated in Section 3.

8.5 Waiver

The waiver by either party of a breach of this Agreement or any right pursuant to this Agreement will not constitute a waiver of any subsequent breach of this Agreement, nor will any failure or delay by either party to exercise any right under this Agreement operate as a waiver of any such right unless such waiver is in writing and signed by the party granting such waiver.

8.6 Entire Agreement

This Agreement constitutes the entire agreement between Gliding Eagle and Client with regard to the subject matter contained in this Agreement, and this Agreement supersedes any and all previously written or oral agreements between the parties regarding the same.

If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.7 Conflicting Terms

If the Client provides Gliding Eagle with any pre-printed form document, such terms will only be effective if it conforms with the terms of this Agreement, or if Gliding Eagle expressly agrees in writing to modify this Agreement.

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