Terms Text - Imperial Wine Storage

IWS operates two storage facilities; one located at 5900 Australian Avenue, Suite One, West Palm Beach, Florida, and a second at 1445 Jupiter Park Drive, Unit 5, Jupiter, Florida (the “Facility”) with space available for lease by individuals or commercial entities for the purpose of storing wine and wine collections and other Permitted Items (as hereinafter defined) and providing related services. Collector desires to lease from IWS certain space at one or both Facilities (the “Lockers,” as specified in the Basic Terms above) in order to store certain personal property (the “Stored Property”) at the Facility, all in accordance with and subject to the terms and conditions of this Agreement. PLEASE READ CAREFULLY THE ATTACHED TERMS AND CONDITIONS, WHICH INCLUDE, AMONG OTHER THINGS, LIMITATIONS OF LIABILITY IN SECTION 8.

NOW, THEREFORE, for valuable consideration, the parties agree as follows:

RENTAL AGREEMENT. Generally. IWS hereby rents to Collector the Lockers beginning on the Commencement Date (as defined in the Basic Terms above). The term of this Agreement (the “Term”) shall be the Initial Term (as defined in the Basic Terms above) and any subsequent terms, subject to termination as provided in this Agreement. Collector hereby agrees to pay promptly when due all Rent and Additional Rent (each as hereinafter defined) owing under this Agreement.

Renewal. At the end of the Initial Term (and at the end of each subsequent term), this Agreement shall automatically renew for an additional time period equal to the then current term, unless either party has given the other notice of cancellation of this Agreement or unless Collector has given IWS notice that Collector elects a different renewal term. In any such case, notice shall be given in accordance with Section 12 of this Agreement not less than thirty (30) days prior to the end of the then current term.

PERMITTED ITEMS. The Facility is intended by IWS principally as a facility for the storage of wine and wine collections. “Permitted Items” are wine and wine collections, including champagne and other beverages, that are bottled or otherwise sealed, as well as related records and other personal property. Without limiting the generality of Section 8 of this Agreement, to the extent that the Stored Property includes personal property in addition to wine and wine collections, IWS has no responsibility for such property, whether or not IWS is aware that such property is in the Lockers. Permitted Items shall not include (a) any food or other items that might spoil, (b) any items that might cause an odor or constitute a nuisance, (c) any items, substances or materials whose transportation, possession, use or storage is in violation of any applicable law or regulation, (d) any animals, (d) any combustible, explosive, corrosive or otherwise dangerous materials.

PAYMENT OF RENT AND OTHER CHARGES. Generally. “Rent” due under this Agreement shall include (i) “Storage Rent” owed and calculated with respect to each Locker leased under this Agreement (together with Florida sales tax) and (ii) Additional Rent (as defined in Section 3(d) of this Agreement). Payment of Rent shall be by cash or check payable to “Imperial Wine Storage, Inc.” and is due without any notice or demand therefor, and without any abatement, deduction or setoff whatsoever. For Collector’s convenience, IWS may from time to time deliver to Collector a statement of amounts due under this Agreement, but amounts due and payable under the terms of this Agreement shall be due and payable without regard to whether such a statement has been sent or received. Any amount due under this Agreement that is not paid in full within thirty (30) days after it becomes due is subject to a late fee equal to 2% of such amount per month or the greatest amount permitted by applicable law, whichever is less. Any payments received by IWS may be applied first to late charges or past due Rent at the sole discretion of IWS. Any amounts prepaid are prepayments and not held as a security deposit.

Initial Payment of Rent. Collector shall pay IWS the initial payment of Rent (set forth in the Basic Terms above) concurrently with the execution of this Agreement. The initial payment of Rent shall include payment in full and in advance of all Storage Rent for the Initial Term and all Additional Rent for any services and other items ordered by Collector upon execution of this Agreement. The Storage Rent due for the Initial Term shall be equal to the number of months of the Initial Term, multiplied by the number of Lockers rented under this Agreement, multiplied by the current rental rate for each such Locker. The current rental rates are set forth in Exhibit B to this Agreement and apply to the Lockers for the entire Initial Term.

Storage Rent. After the Initial Term, Storage Rent for any renewal term shall be due and payable under this Agreement in full and in advance at the beginning of such renewal term in an amount equal to the rental rates IWS may establish for the renewal term plus Florida sales tax. Current storage rates are guaranteed for the duration of the selected Initial Term only.

Additional Rent. “Additional Rent” under this Agreement shall include all amounts due for any ancillary services or other items ordered from IWS (together with Florida sales tax), any termination fees, late fees, taxes and other fees and expenses of any nature in addition to Storage Rent payable by Collector under or pursuant to this Agreement. Amounts paid for ancillary services and other items ordered from IWS shall be paid in advance of performance of the related services and delivery of the related items.

TERMINATION. Termination by Collector. Provided that Collector is not in default of any of its obligations to IWS, Collector may terminate this Agreement with respect to any or all Lockers at any time by (i) giving notice to IWS of the termination date and identifying the Lockers with respect to which this Agreement is to be terminated, (ii) complying with the provisions of Section 13 of this Agreement, and (iii) paying a termination fee equal to one (1) month’s rental for each Locker being terminated (provided, however, that such termination fee shall not apply if Collector gives more than 30 days’ notice of the termination date).

Termination by IWS. IWS may terminate this Agreement at any time by giving Collector not less than thirty (30) days’ notice of the termination date, in which case Collector shall comply with the provisions of Section 13 of this Agreement. If Collector has not done so, IWS may at its election treat such failure as a default under Section 11 of this Agreement and have recourse to all rights and remedies attendant thereto. In the event of a default by the Collector, IWS has additional rights to terminate this Agreement under Section 11 of this Agreement.

Reconciliation. Promptly following the termination of this Agreement, IWS will prepare and deliver to Collector a statement reconciling amounts paid, prepaid and owed by Collector under this Agreement (periods of less than a month being prorated on a daily basis). Following the delivery of such statement, if IWS owes a refund of any amount to Collector, IWS shall promptly pay that amount, and if Collector owes any amount to IWS, Collector shall promptly pay that amount.

1. AGREEMENTS BY COLLECTOR. Possession and Taxes. Collector hereby represents, warrants and agrees that Collector has, and at all times during the term of this Agreement shall continue to have, lawful possession of and legal right and authority to store all of the Stored Property in accordance with the terms and conditions of this Agreement, and that Collector has paid any and all state and federal taxes, levies and duties (and any penalties) owed with respect to the Stored Property and Collector shall timely pay any of the same arising in the future.

Use of Lockers. Collector shall use the Lockers for the storage of Permitted Items and for no other purpose. Collector shall be responsible to lock and secure the Lockers with a suitable padlock at Collector’s expense and to safeguard the keys or combination thereto. Collector agrees that the Lockers shall not be used for occupancy by persons or for the operation of any business. Collector shall maintain the Lockers in a safe and clean condition, shall store all Stored Property in reasonable condition and in reasonable containers, and shall promptly remove trash and other disposable materials from the Lockers.

Compliance. In using and occupying the Facility and the Lockers and in any other activities at the Facility, Collector and its agents, employees, contractors, guests, licensees and invitees shall comply with all legal requirements of any government or governmental agency, shall comply with any and all rules and regulations promulgated from time to time by IWS, and shall not do or suffer to be done anything that might damage the Facility or the possessions of other occupants of the Facility or endanger the health or safety of any person working in or visiting the Facility.

Delivery and Removal. Collector is responsible for delivering all Stored Property to the Facility and into the Lockers and removing all Stored Property from the Lockers and the Facility, unless Collector has authorized IWS to provide pick-up and/or delivery service at IWS’ then current rates for such service. Collector agrees that IWS may ship the Stored Property by any means of transportation selected by IWS.

No Sublet or Assignment. Collector shall not sublet, assign or transfer this Agreement or any interest herein or in the Lockers without the express prior written consent of IWS (which IWS may withhold in its sole discretion).

THE LOCKERS. Collector’s Access. Collector (and Collector’s agents and employees designated to IWS in writing (“Authorized Persons”)) may have access to the Lockers upon presentation of proper identification during the Facility’s regular business hours, as may be determined from time to time by IWS. Access to the Lockers may also be available at additional times by mutual agreement of IWS and Collector. Notwithstanding the foregoing, access to the Lockers may be denied pursuant to Section 11 of this Agreement in the event that Collector is in default of any of the terms, covenants or conditions of this Agreement.

Limited Services. Except as otherwise expressly stated in this Agreement, IWS is not supplying any water, heating, electricity, cleaning, toilets, rubbish removal, assistance in storing Collector’s personal property or any other services or utilities. IWS will supply lighting where the Lockers are located. The interruption or cessation of any services provided by IWS or the temporary exclusion of Collector from the Lockers or the Facility will not entitle the Collector to any reduction of Rent or create any liability or obligation of IWS to Collector.

IWS’s Rights. In the event of an emergency, in order to investigate a suspected default under this Agreement, or as may be required by subpoena or operation of law, IWS may enter the Lockers. If IWS enters the Lockers, Collector’s padlock may be removed and replaced with another padlock. No such entry will entitle Collector to any reduction of Rent or create any liability or obligation of IWS to Collector. Notwithstanding the foregoing, neither this authority of IWS to enter the Lockers nor a decision made in good faith either to exercise or not to exercise such authority shall impose upon IWS any duty or responsibility to Collector.

INSPECTION. Collector acknowledges and agrees that it has had opportunity to inspect the Facility and the Lockers and accepts them in their present “as-is” condition. IWS has not examined the Stored Property or the other personal property placed at the Facility by any other collector and makes no undertaking to do so in the future. IWS makes no representation or warranty under this Agreement or otherwise, express or implied, that the Stored Property or such other personal property is of the type, description or quality represented by Collector or by any other collector, as the case may be. IWS assumes no responsibility or liability for the contents of any box, case, bottle or package among the Stored Property or such other personal property.

NO LIABILITY FOR IWS. ALL STORED PROPERTY AT THE FACILITY IS PLACED THERE AT COLLECTOR’S SOLE RISK. IWS (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) SHALL NOT BE RESPONSIBLE OR LIABLE TO COLLECTOR, OR ANY PERSON CLAIMING BY, THROUGH OR UNDER COLLECTOR (INCLUDING, WITHOUT LIMITATION, ANY EMPLOYEES, AGENTS OR INVITEES OF COLLECTOR) FOR ANY LOSS OF OR DAMAGE TO ANY PROPERTY (INCLUDING, WITHOUT LIMITATION, THE STORED PROPERTY) OR INJURY, INCLUDING DEATH, TO ANY PERSONS OR PERSONS AT ANY TIME IN OR ABOUT THE FACILITY FROM ACCIDENT, THEFT, FIRE, EXPLOSION, POWER OUTAGES, BURSTING, VIBRATION, BREAKAGE, LEAKAGE, LABEL DAMAGE, SPOILAGE, CORK DAMAGE, STEAM, GAS, ELECTRICITY, WATER, DAMPNESS, FLOODING, SEWERAGE, TEMPERATURE FLUCTUATIONS, HUMIDITY FLUCTUATIONS, LIGHTNING, RAIN, WIND, OR ANY OTHER CAUSE WHATSOEVER (EXCEPT TO THE EXTENT OF ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF IWS, PROVIDED, HOWEVER, THAT COLLECTOR DECLARES AND AGREES THAT DAMAGES FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF IWS ARE LIMITED TO $500), AND COLLECTOR HEREBY EXPRESSLY RELEASES IWS (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) FROM ANY RESPONSIBILITY OR LIABILITY THEREFOR. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IWS (AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES) SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL OR SPECIAL DAMAGES CLAIMED, ARISING OR RESULTING FROM OR IN CONNECTION WITH ANY SUCH LOSS, DAMAGE OR INJURY. CLAIMS BY COLLECTOR MUST BE PRESENTED IN WRITING WITHIN A REASONABLE TIME, AND IN NO EVENT LATER THAN FIFTEEN (15) DAYS AFTER THE EARLIER OF (A) COLLECTOR BECOMING AWARE OF THE DAMAGE AND (B) DELIVERY OF THE STORED PROPERTY BY IWS. NO ARBITRATION OR OTHER PERMITTED LEGAL ACTION MAY BE MAINTAINED BY COLLECTOR AGAINST IWS FOR LOSS OR DAMAGE TO THE STORED PROPERTY DUE TO IWS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT PRIOR TO SIXTY (60) DAYS AFTER NOTICE OF CLAIM OF SUCH LOSS OR DAMAGE HAS BEEN GIVEN TO IWS IN WRITING BY REGISTERED OR CERTIFIED MAIL, AND ANY SUCH LEGAL ACTION MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE EARLIER OF (X) COLLECTOR BECOMING AWARE OF THE DAMAGE AND (Y) DELIVERY OF THE STORED PROPERTY BY IWS.

NO INSURANCE. Collector understands and agrees that IWS does not provide or maintain insurance covering the Stored Property and that Collector is responsible for providing or maintaining any insurance covering the Stored Property that Collector desires. Collector hereby waives any right of subrogation against IWS and its directors, officers, employees, agents and representatives.

INDEMNITY. Collector shall pay, indemnify, defend and hold harmless IWS and its directors, officers, employees, agents and representatives, from and against any and all claims, actions, damages, liabilities, losses, costs and expenses, including reasonable attorneys’ fees and expenses, claimed, arising or resulting from or in connection with (i) the use, occupancy, maintenance or control of the Lockers or any part thereof by Collector, or (ii) any act or omission of Collector or Collector’s agents, employees, contractors, guests, licensees or invitees, or (iii) any default, breach, violation or non-performance of this Agreement or any provision hereof by Collector, or (iv) any loss of or damage to property (including without limitation the Facility) or injury to any person, including death, sustained in or about the Facility (except to the extent of the gross negligence or willful misconduct of IWS).

1. DEFAULT. If Collector (i) fails to pay Rent or Additional Rent when due, (ii) abandons any or all of the Lockers, or (iii) fails to comply with any of the terms, conditions or provisions of this Agreement, then IWS may in its sole discretion, without obligation, in each such event, (a) deny Collector access to the Lockers, overlock the Lockers, remove any lock or locks of Collector on the door of the Lockers, move the Stored Property to another Locker(s), and/or remove the Stored Property from any or all of the Lockers, (b) sell some or all of the Stored Property, (c) upon thirty (30) days’ written notice, terminate this Agreement, or (d) take such other action as IWS shall deem appropriate under the circumstances; in each case, IWS shall not be deemed guilty of trespass, and, with respect to clauses (a), (b) and (d), there shall be no effect on the continuation of this Agreement and Collector’s obligation to continue to pay Rent. IWS shall have a lien upon and security interest in all of the Stored Property for the payment of all sums payable or to be payable by Collector under this Agreement. Collector hereby grants to IWS the right to re-enter the Lockers and remove any property therefrom upon a default by Collector under the terms of this Agreement. Upon taking possession of any of the Stored Property, IWS may dispose of any such property, as provided by law (any sale need not be by public or auction sale), and after IWS has been reimbursed out of the proceeds of such sale for all delinquent Rent, late charges and all other amounts due under this Agreement, plus its actual costs and reasonable attorneys’ fees expended in connection with such disposition, any amount remaining out of the proceeds of sale shall be held in escrow for the Collector for a period of one hundred eighty (180) days from IWS’ receipt of the proceeds. If the Collector fails to make a written demand upon IWS, by certified mail/return receipt requested, for return of said funds within said one hundred eighty (180) day period, then said funds shall be forfeited by the Collector to IWS, and Collector shall be deemed to have to expressly waived any right or claim whatsoever to said funds.

NOTICE. Any notice required or permitted to be given under this Agreement or pursuant to law must be in writing and shall be deemed delivered (a) on the day that it is (i) personally delivered, (ii) deposited with commercial courier for next day delivery, or (iii) sent by facsimile, electronic mail or other electronic means, or (b) on the third day after it is deposited in the United States mail, postage prepaid, in each case to the address for IWS or Collector (as the case may be) set forth on the first page of this Agreement (or to the last other address as either party may have given the other by effective notice under this Agreement).

1. END OF TERM. On the last day of the term of this Agreement, Collector shall deliver to IWS possession of the Lockers empty, broom-clean and in the same condition as they were on the Commencement Date, ordinary wear and tear excepted. Any personal property remaining in the Lockers on such date may be disposed of by IWS at Collector’s cost and expense, and/or Collector may be charged IWS’ then-current rates for an additional term of storage and will be bound by the terms and conditions of this Agreement.

RIGHT TO SUBSTITUTE LOCKERS. IWS may, at any time on written notice to Collector, relocate Collector from one or more of the Lockers to another space in the Facility, and/or remove any Stored Property from the Facility and store it at any alternative location as IWS deems necessary or appropriate (in either event, the “Substituted Space”). The Substituted Space shall be approximately equal in area to the Lockers being relinquished. Thereupon, this Agreement shall continue in full force and effect with the Substituted Space being treated for all purposes as the Lockers.

ANCILLARY SERVICES. For a separate fee, Collector may engage IWS to provide certain ancillary services relating to the Stored Property. See Exhibit B for a description of such services and the current fees. Such fees are subject to change or modification without notice at any time and from time to time at the discretion of IWS. Notwithstanding the engagement of IWS by Collector to provide any such services, Collector shall retain all of the duties, responsibilities and liabilities described in this Agreement, including, without limiting the generality of the foregoing, those set forth in Sections 7 (Inspection), 8 (No Liability for IWS), 9 (No Insurance) and 10 (Indemnity) of this Agreement.

CONFIDENTIALITY AND USE OF INFORMATION. All non-public information regarding the Facility and the operations and business practices of IWS provided to Collector, including without limitation the terms of this Agreement, is proprietary and shall be kept confidential by Collector and shall not be used by Collector except to determine whether or not to store property with IWS.

MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without reference to its conflict of laws provisions. This Agreement contains the entire agreement between the parties and no alteration, waiver or amendment shall be binding against the parties unless made in writing and signed by the party to be charged. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, legal representatives, executors, successors and permitted assigns. In the event that any provision of this Agreement, or any application thereof, is determined to be unlawful or unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect. This Agreement will not, however, bind IWS or any subsequent owner after IWS or such owner transfers its interest in the Facility. The headings and captions in this Agreement are for reference only and shall not be used to interpret or limit the provisions hereof. Any dispute related to this Agreement shall be resolved through binding arbitration according to the rules of the American Arbitration Association with a single arbitrator in Palm Beach County, Florida. In the event that arbitration or any other permitted legal action is brought against IWS by or on behalf of Collector by reason of any alleged liability arising out of this Agreement, Collector hereby agrees to pay to IWS on demand all costs and expenses, including attorneys’ fees and expenses, incurred by IWS in the event IWS prevails in that arbitration or action.