Website and Mobile App Terms of Use
Effective Date: 8/17/2020
Last Revised: 3/21/2022
Acker, Merrall & Condit Company and its affiliates, including, without limitation, Acker Auction, Inc., Acker, Merrall & Condit (Asia) Ltd, Acker London Ltd., Acker Auction DE, LLC and The Wine Workshop LLC (collectively, “Acker”, “we”, “us” or “our”), on and through ackerwines.com (the “Website”) and our mobile application (including any updates or upgrades to the application software and any related documentation) (collectively with the Website, the “Digital Platforms”), advertises, promotes, sells and auctions wine, spirits and other alcoholic beverages, and related products (collectively, “Products”) and provides other features, information, and news related to Products in a variety of media (collectively with Products, the “Products & Services”).
By accessing and using the Digital Platforms and/or using or purchasing our Products & Services, you are agreeing to be bound by these Website and Mobile App Terms of Use (the “Website and Mobile App Terms of Use” or “Terms”) without modification, limitation or qualification. Please read them carefully. Please also note that we may, in our sole discretion, modify or revise these Terms at any time by updating the text of this page, and you will be bound by any such modification or revision from that point forward. You should therefore visit this page periodically to review the Terms. Your continued access, use, browsing or purchasing via our Digital Platforms following the posting of changes to the Terms means that you accept those modifications or revisions. We will take appropriate measures to inform you of material changes to the Terms, consistent with the significance of the changes we make, including by email or by notification on our Digital Platforms. If you do not agree with the changes, you should notify us and immediately stop using the Digital Platforms. You can see when these Terms have been last updated by checking the “Last Revised” date displayed on the top of these Terms.
We often make Products & Services available to you through the Digital Platforms and when we do additional terms and conditions may apply. Such additional terms will be presented to you at the time of digital access to the applicable Products & Services. Those additional terms are hereby incorporated by reference into these Terms and become part of your agreement with us if you use, download or purchase those Products & Services (as applicable). In the event of a conflict between these Terms and those additional terms, the latter will control. For the avoidance of doubt, and merely by way of example, your purchase of non-auction wine, spirits and other alcoholic beverages through the Website will be subject to our Retail Conditions of Sale and your participation in any Acker auction (including by bidding using the Digital Platforms) will be subject to the Conditions of Sale applicable to the relevant auction, found here.
1. USING OUR WEBSITE.
The Digital Platforms allow for browsing and online shopping of and access to our Products & Services (including retail purchases and placing bids at our live and online auctions). They also provide news and valuable information about our Products & Services, including, without limitation, data, articles, publications, videos, products, graphics, photographs, video, sound, audio clips, digital downloads, text, images, icons, coding, scripts, software, pictures, rankings, indexes, sorting, presentations, compilations, and other material (collectively, “Content”). The Content of the Digital Platforms owned and controlled by Acker or by third parties that have licensed their Content to us.
Warning: Our Products & Services relate to the advertisement and promotion, sale and auction of wine, spirits and other alcoholic beverages. By accessing, using, browsing or purchasing Products & Services on the Digital Platforms, you represent that you are at least 21 years of age. You further represent that upon purchasing Products via the Digital Platforms, you will ensure that the shipment and delivery of your purchase is received by a person at least 21 years of age.
2. LIMITED LICENSE.
Subject to the restrictions and limitations set forth in these Terms, we grant you a limited, non-exclusive license to access and use the Digital Platforms, the Acker Software (as hereinafter defined), and Content therein, only for your own personal, internal use, if an individual or other non-principle entity, and, if an agent, only for the purposes of facilitating a transaction for your clients with us. You are permitted to access the Content only through the Digital Platforms. You may download no more than a single copy or print of any the Contents only as necessary for your personal, internal, and non-commercial use, or in the case of agents, to display to your clients solely for purposes of facilitating a transaction with us.
3. PROHIBITIONS ON USE.
Except as explicitly set forth herein, you must obtain our prior written consent for any reproduction of the Content of the Digital Platforms or any portion thereof. The following activities are also expressly prohibited without Acker’s prior written permission:
• any non-personal or commercial use (other than an agent’s use to facilitate a transaction for your clients with us);
• use of any robot, spider, other automatic device or manual process to monitor or copy the Digital Platforms or any of the Content;
• “mirroring” the Digital Platforms or any Content on any other server;
• modifying, adapting, editing, creating derivative works from, transferring, selling, licensing, renting or otherwise exploiting or making commercial use of the Digital Platforms, the Content, the Acker Software, or any element thereof (including any inventions, algorithms, processes, techniques, source or machine code, data or materials used or incorporated in, implemented by, or available on or through the Digital Platforms);
• collection or use of Content, including product listings, descriptions or prices, for a supplier of competitive or comparable products;
• any action that imposes an unreasonable or disproportionately large load on the Digital Platforms or otherwise interferes with their functioning;
• the input or upload of any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any Acker system, including the Digital Platforms;
• deleting or altering any copyright, trademark, or other proprietary rights notices from copies of materials from the Digital Platforms;
• attacking the Digital Platforms via a denial-of-service attack or a distributed denial-of-service attack;
• exploiting or harming minors (or attempting to do so) in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
• procuring the sending of any advertising or promotional material (without our prior written consent), including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; and
• reverse engineering, decompiling, decrypting, disassembling or converting into human readable form, the Digital Platforms, Content, the Acker Software, or any element thereof (including any inventions, algorithms, processes, techniques, software, source or machine code, data or materials used or incorporated in, implemented by, or available on or through the Digital Platforms).
You may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of Acker, without our prior written consent. You may not use any meta tags or any other “hidden text” utilizing Acker’s name or trademarks without our prior written consent.
In addition to the use specified herein, the Terms herein apply to any other software (including any updates or upgrades to the software and any related documentation) that we make available to you from time to time for your use in connection with our Products & Services (the “Acker Software”) and terms of the software license agreement accompanying such Acker Software (the “License Agreement”), and is further conditioned on your agreement to be bound by the terms of the License Agreement.
4. PRIVACY.
We consider the privacy and protection of our customers’ personal data and personal information to be paramount. Our Privacy Policy (for US residents, found here; and for European Economic Area and other non-US residents, found here), provides further information regarding our practices and policies in relation to personal data and personal information.
Unless otherwise explicitly stated herein, any non-personal information or material sent to Acker will be deemed NOT to be confidential. By sending Acker any non-personal information or material, you grant Acker an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute such materials or information, and you also agree that Acker is free to use any ideas, concepts, know-how or techniques that you send us for any purpose. However, Acker will not release your name or otherwise publicize the fact that you submitted materials or other information to us unless: (a) you grant us permission to do so; (b) we first notify you that the materials or other information you submit to a particular part of a site will be published or otherwise used with your name on it; or (c) we are authorized or required to do so by law.
5. YOUR ACCOUNT.
To shop, place orders, place bids at our live or online auctions, or otherwise use the Products & Services on our Digital Platforms, you may be required to open an online account and/or provide certain personalized information to us (collectively, “User Information”). You agree that you are solely responsible for the accuracy and content of your User Information, and you agree to keep it up to date. It is your sole responsibility to maintain the confidentiality of your account, password, digital signature and User Information, and for restricting access to your computer and other mobile devices. You are hereby advised to ensure that minors, children and persons under the age of 21 do not use your account and User Information to purchase our Products & Services or otherwise use any of our Digital Platforms’ functionality related to Products. You hereby agree to accept full responsibility for all activities that occur under your account or password.
6. CHILDREN’S ONLINE PRIVACY PROTECTION.
We will not knowingly collect personally identifiable information from any person that is actually known to us to be a child under the age of 16. IF YOU ARE UNDER 16 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE DIGITAL PLATFORMS AT ANY TIME OR IN ANY MANNER.
7. INTELLECTUAL PROPERTY.
As between you and Acker, Acker solely and exclusively owns all right title and interest in and to the Digital Platforms, the Content, the Acker Software, and all elements thereof, including all any inventions, algorithms, processes, techniques, software, source or machine code, data, and materials used or incorporated in, implemented by, or available on or through the Digital Platforms, the look, feel and design of the Digital Platforms, the Acker Software, and the Content, compilations of the Content, code, data and materials in the Digital Platforms, and all copyrights, trademark rights, patent rights, database rights, trade secrets, moral rights (including rights of authorship, attribution and subsequent modification) and other intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) in the Digital Platform, the Content, or the Acker Software, any of the foregoing. Your use of the Digital Platforms, the Acker Software, or the Content does not grant to you any right, title or interest in any element thereof, and Acker (and/or our applicable licensors and partners) owns and retains all right, title and interest (including all intellectual property and proprietary rights) therein and thereto, throughout the World.
(a) Copyright Notice.
The Digital Platforms, the Content, the Acker Software, and all elements thereof, including all any algorithms, processes, techniques, software, source or machine code, data, and materials used or incorporated in, implemented by, or available on or through the Digital Platforms, the look, feel and design of the Digital Platforms and the Content, compilations of the Content, code, data and materials in the Digital Platforms, and all works of authorship therein, are the exclusive property of Acker and are protected by United States and international copyright laws, Copyright 2022 Acker, Merrall & Condit Company, All Rights Reserved.
(b) Trademark Notice.
All of our marks on our Digital Platforms are registered trademarks of Acker in the United States and other jurisdictions. Ackerwines.com and its related graphics, logos, page headers, button icons, scripts, and product and service names included in or made available through the Products & Services, are trademarks or trade dress of Acker in the United States and other jurisdictions. Acker’s trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Acker. All other trademarks not owned by Acker that appear on the Digital Platforms are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Acker.
(c) Copyright & Trademark Complaints Notice.
We respect the intellectual property rights of others, and require all users of our Digital Platforms and Products & Services to respect ours as well. If you believe that your work has been copied in a way that constitutes copyright or other intellectual property infringement, please report your alleged infringement as soon as possible, to complaints@ackerwines.com.
8. DISCLAIMERS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE DIGITIAL PLATFORMS, THE ACKER SOFTWARE, AND THE CONTENT IS AT YOUR SOLE RISK, AND THE DIGITAL PLATFORMS AND ALL SERVICES, CONTENT (INCLUDING ACKER SOFTWARE OR ANY OTHER SOFTWARE), FUNCTIONS, MATERIALS AND PRODUCTS & SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE DIGITAL PLATFORMS (COLLECTIVELY, “MATERIALS”) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THEIR OPERATION OR THE INFORMATION CONTAINED THEREIN, UNLESS OTHERWISE SPECIFIED IN WRITING.
TO THE FULLEST EXTENT PERMITTED BY LAW, ACKER AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS, ASSIGNS, CONTENT PROVIDERS, SERVICE PROVDERS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “ACKER RELATED PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ACKER RELATED PARTIES DO NOT WARRANT THAT THE MATERIALS, THE ACKER RELATED PARTIES’ SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM THE ACKER RELATED PARTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9. LIMITATION OF LIABILITY.
IF YOU OR ANY THIRD PARTY ARE DISSATISFIED WITH ANY PORTION OF THE DIGITAL PLATFORMS, THE CONTENT, THE ACKER SOFTWARE, OR WITH ANY PROVISION OF THE LICENSE AGREEMENT OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE DIGITAL PLATFORMS, THE CONTENT, THE ACKER SOFTWARE, AND PRODUCTS & SERVICES. UNDER NO CIRCUMSTANCES SHALL ANY OF THE ACKER RELATED PARTIES BE LIABLE TO ANY USER OR ANY THIRD PARTY ON ACCOUNT OF THAT USER'S USE OF THE DIGITAL PLATFORMS. IN NO EVENT SHALL ANY OF THE ACKER RELATED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE DIGITAL PLATFORMS, THE DELAY OR INABILITY TO USE THE DIGITAL PLATFORMS, THE PROVISION OF OR FAILURE TO PROVIDE THE MATERIALS, OR THE CONTENT CONTAINED WITHIN THE MATERIALS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND EVEN IF THE ACKER RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE ACKER RELATED PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTIONARISING FROM THESE TERMS OR YOUR USE OF THE MATERIALS EXCEED, IN THE AGGREGATE, FIFTY UNITED STATES DOLLARS ($50.00) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED,.
10. NOTICE REGARDING ENFORCEABILITY OF CERTAIN DISCLAIMERS AND LIMITATIONS OF LIABILTY.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES AND/OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS PROVIDED FOR HEREIN (INCLUDING IN SECTION 8 AND SECTION 9 ABOVE) MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
11. PRODUCT DESCRIPTION AND TYPOGRAPHICAL ERRORS.
We attempt to be as accurate as possible. However, except for the general product description for each item, Acker makes no representation or warranties that product descriptions contained on the Digital Platforms are accurate, complete, reliable, current or error-free. As relates to the sale of wine, spirits and other alcoholic beverages, please refer to our Retail Conditions of Sale and relevant auction Conditions of Sale, as applicable, for information about our sale and auction policies.
12. ORDER ACCEPTANCE POLICY.
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We do not accept credit card payment for orders placed over fifteen thousand United States Dollars ($15,000.00). We may in our sole discretion require additional verification or information before accepting any order.
13. LINKS.
(a) Linking to the Digital Platforms.
You agree that if you include a link from any other website to the Digital Platforms, such link shall: (i) not contain information or be as of a kind to portray Acker in a false, misleading, derogatory or otherwise offensive manner; (ii) open in a new browser window; and (iii) link to the full version of an HTML formatted page of this Website (where it is a link to the Website). You are not permitted to link directly to any image or other Content hosted on the Digital Platforms or our Products & Services, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another website. You agree not to download or use images or other Content hosted on the Digital Platforms on another website or platform, for any purpose, including, without limitation, posting such images on another site, except as explicitly set forth herein. You agree not to link from any other website to the Digital Platforms in any manner such that the Digital Platforms, the Content, or any page of the Digital Platforms, is “framed,” surrounded, or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Digital Platforms or Content be discontinued or removed, and to revoke your right to link to the Digital Platforms or Content from any other platform at any time upon written notice to you. To find out more information about our linking policies, or to seek our permission, you may e-mail linking@ackerwines.com.
(b) Links to Other Websites.
You may be able to link from the Digital Platforms to third party websites or platforms, and third party websites or platforms may link to the Digital Platforms ("Linked Sites"). You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites, even if they are owned or operated by Acker. Links to Linked Sites do not constitute an endorsement or sponsorship by us of such websites or the information, content, products, services, advertising, code or other materials presented on or through such websites. Any reliance on the contents of a third party website or platform is done at your own risk and you assume all responsibilities and consequences resulting from such reliance. Under no circumstances shall any of the Acker Related Parties be responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, goods or services available on any other site. You should direct any concerns to that other site’s administrator or webmaster.
14. ELECTRONIC COMMUNICATIONS.
When you access our Digital Platforms the Acker Software, or the Content, or use or purchase any of our Products & Services or send e-mails to us, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Digital Platforms. 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.
15. INDEMNIFICATION.
To the fullest extent permitted by law, you agree to indemnify, defend and hold each of the Acker Related Parties harmless from and against any and all losses, damages, demands, claims, suits, judgments, costs, expenses, or other liability of any kind (including reasonable legal, accounting and expert fees, and expenses) relating to, arising from, or resulting from your use of the Digital Platforms, the Content. the Acker Software, including your violation of law or the rights of any third party thereto, or your actual, threatened or alleged direct or indirect breach of any of these Terms. You further agree to advance each of the Acker Related Parties, upon demand, all costs and expenses (including reasonable legal, accounting and expert fees, and expenses) as they are incurred by such Acker Related Parties (as applicable) in connection with any matter covered by the indemnification provisions of this Section 15.
16. EXPORT CONTROL OF SOFTWARE AND TECHNICAL DATA.
The following applies with respect to Acker Software and other Content of a technical nature that you may obtain from the Digital Platforms (other requirements set forth in these Terms and certain additional terms and conditions may apply with respect to items offered for sale, purchased or sold): The United States controls the export of such intellectual property. You agree to comply with such restrictions and not to export or re-export the Content or the Acker Software to countries or persons prohibited under the export control laws of the United States. By downloading the Content or the Acker Software, you are agreeing that you are not in a country where such export is prohibited and that you are not on the United States Commerce Department’s Table of Denial Orders or the United States Treasury Department’s list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Acker Software and/or the Content.
17. LOCAL STANDARDS.
We do not represent that materials on the Digital Platforms, the Content, or the Acker Software are appropriate for use in all locations. Persons who choose to access the Digital Platforms or Acker Software do so of their own initiative, and are responsible for compliance with any applicable local laws.
18. NO WAIVER.
Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in that or any other instance.
19. SEVERABILITY.
Should any part of these Terms be rendered or declared invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these Terms shall remain in full force and effect.
20. THIRD PARTY BENEFICIARIES.
Nothing in these Terms shall be construed to give any rights to any third parties to enforce the terms hereof, except that each of the Acker Related Parties (other than Acker) shall be an express third party beneficiary of, and entitled to enforce, the protections and rights bestowed upon such entity or person herein.
21. GOVERNING LAW AND FORUM SELECTION.
These Website and Mobile App Terms of Use (including your and Acker’s respective rights and obligations hereunder and your use of the Digital Platforms) shall be governed by the laws of the State of New York without regard to the conflicts of laws principles thereof. For the benefit of Acker, by using the Digital Platforms and/or Acker Software you consent and agree to the exclusive jurisdiction of the state courts of the State of New York located in New York County in connection with any legal claim or action relating to, arising from, or in connection with these Terms (including your and Acker’s respective rights and obligations hereunder and your use of the Digital Platforms or Acker Software) and consent to personal jurisdiction in such courts. You waive, to the maximum extent permitted by law, any objection to the laying of venue in any such court and any claim that such court would be an inconvenient forum for any action covered by this Section 21. You agree that Acker shall retain the right to bring legal proceedings in any court other than the state courts of the State of New York located in New York County.
22. JURY TRIAL AND CLASS ACTION WAIVERS.
YOU AND ACKER EACH IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING FROM, RELATING TO, OR CONCERNING THESE WEBSITE AND MOBILE APP TERMS OF USE, INCLUDING THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND YOUR USE OF THE DIGITAL PLATFORMS OR THE ACKER SOFTWARE,.
YOU UNDERSTAND AND AGREE THAT ANY LEGAL ACTION OR PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND ACKER SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ACTION. THIS CLASS ACTION WAIVER IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
23. FURTHER INQUIRIES.
Please feel free to direct any questions to us about these Terms, the Digital Platforms, the Acker Software, the Content, and our Products & Services, or any other issues, via e-mail at inquiries@ackerwines.com.
Privacy Policy
ACKER WINES PRIVACY POLICY
Effective Date: 8/17/2020
Last Revised Date: 5/30/2023
Last Reviewed Date: 5/30/2023
Introduction
Acker Merrall & Condit Company and its affiliates, including without limitation, Acker Auction DE LLC, Acker Auction, Inc., Acker Merrall & Condit (Asia) Limited, Acker U.K. Ltd., Acker Storage, LLC, and the Wine Workshop LLC (collectively, “Acker”, “we”, “us” or “our”) advertises, promotes, sells, and auctions wines and spirits or other related items (the “Property”). We have physical locations in the United States (California, Delaware, and New York), Hong Kong, and the United Kingdom. We provide this Privacy Policy to inform you how we obtain, utilize, and disclose your personal information for our business operations. This Privacy Policy also describes your rights in relation to this information. This Privacy Policy applies to any Acker services, events, websites, mobile applications or other digital or non- digital services, and any hard copy documents that refer to this Privacy Policy.
For residents of California and Virginia, please see pages 5-8 for further information specific to your residency. For residents of the United Kingdom or the European Economic Area, please see pages 8-10 for further information specific to your residency.
Information We Collect About You
Personal information is information, or a combination of pieces of information, that could reasonably allow you to be identified. As described below, we collect personal information about you from multiple sources, including information we collect from you directly, information we collect indirectly, and information we collect automatically from you.
We compile information directly from you that you submit to us in-person, on the telephone, in writing, by email or online or submit to us via third party websites. The categories of information that we collect directly from you include: personal details (e.g., name, date of birth, nicknames), contact details (e.g., phone number, email address, mailing address), transaction information (e.g., auction bidding or purchase records, shipping information, information about Property you purchase at auction or retail or wish to sell or consign, details about your Property, financial information (e.g., tokenized credit/debit card information you provide for your purchases, wire instructions, bank account/bank transfer information), login credentials, user identity, and identification information.
We depend on the information you submit to us or that we collect or observe from your interactions with us.
We may collect information about you from external sources. The categories of information we collect about you from other sources include your public profile information, results of our verification of your identification checks, or whether you are subject to sanctions. We may work to expand Acker’s network by acquiring names, contact data, and other related information, as legally allowed. Furthermore, we may also generate information based on the information you have provided or that we have obtained from other sources, as legally allowed.
We collect information about you automatically as described below. We may take photographs of our auctions (including for security reasons) and bidding parties (to confirm bidding activity) or other live events.
Live streaming of our auctions and special events is available on our websites. Auctioneers, presenters, and Acker personnel are the focal point of our camera and microphones, but background images may be captured. When we host an event at a third-party venue, that venue may have CCTV.
We may use common data collection technologies as you visit our websites or apps or interact with our emails (“Systems”). For example:
Our logs collect: date and time of your use of our Systems, information about your browser and system or device configuration, information about how you interact with our Systems, and an IP address for all visitors to our sites.
If you have registered with us online, we use data collection technologies to collect information that indicates your individual interests in our websites, online platforms and apps, and your response to our emails and marketing offers.
Cookies and similar technologies on our digital platforms can read and collect data about your browsers as you visit and interact with those platforms. A cookie is a piece of data stored on your hard drive containing information related to your visit to our website. We use cookies on our websites to analyze your journey, customize our services, content and advertising, and measure our marketing efforts.
Cookies track your movement on our website, including what you view and your transactions and purchases. They essentially serve to improve and personalize your experience on our websites.
A few important things you should know about our use of these technologies are that: we offer certain features that are available only through the use of cookies; we use cookies to help identify you, track information about you and maintain your account as signed in; most cookies are “session cookies,” meaning that they are automatically deleted from your hard drive at the end of a session; you are always free to decline our cookies if your browser permits, although doing so may interfere with your use of our website or our services; you may
encounter cookies from certain of our service providers that we have allowed on our website and assist us with various aspects of our website operations and services; and you also may encounter cookies from third parties on pages of our website that we do not control and have not authorized (for example, if you view a web page created by another user, there may be a cookie placed by that web page).
We apply these technologies to allow you to use our digital platforms, learn how you and others interact with Acker’s materials, and how to personalize our services to your interests. Our mobile apps provide us with the data you share about yourself with our databases and Systems.
How We Use Information About You
We use data about you for the following purposes, as permitted by applicable law: (a) to provide you with your requested services, (b) to manage and assure the integrity and quality of our services, (c) to set you up as a client, verify your identity and to perform sanctions checks, to fulfill your orders, facilitate sales or consignments, provide the information and materials you request, to manage your account and requests as well as your experience with us, (d) to note where you consign or buy Property, advertise and sell your Property on our U.S., Hong Kong and/or U.K. websites, (e) to send you information about upcoming Acker auctions, offers, and events which may interest you, (f) to personalize our services to you based on your interests, (g) to align online ads to your interests, arrange for Acker’s and other companies’ ads to reach you after you have left our sites, and help show you ads that are more relevant to your interests , (h) to measure the performance of our websites and apps and improve your experience, (i) to carry out risk and transaction screening, (j) to protect and defend our rights, Property, you, and/or the rights of third parties,
(k) to keep all individuals and Property on our premises or hosts’ premises safe, (l) to comply with legal obligations and regulations and cooperate with regulators, or other governmental agencies, in all applicable jurisdictions, (m) to develop and improve our services, and (n) to improve your satisfaction.
How We Disclose Information About You
Your personal information will be processed by the Acker entity that initially receives it. We also share information within Acker and its affiliates for the purposes set out in this Privacy Policy. Those companies are named at the beginning of this Policy.
Acker may disclose personal information to other companies or entities as follows (a) to business partners and vendors that work on our behalf to provide services to us and our clients such as Property shipments, mailings, secure payment processing, and data and Property storage, (b) to any auction partners with whom we contract for certain auctions, (c) to consignors, sellers, buyers, customs authorities, and others as needed to facilitate a transaction with Acker, (d) to organizations with which we host events and those
involved in such events such as the event venues, (e) to law enforcement or other entities that present valid legal authority and process or in our discretion, unless otherwise prohibited by law, to protect our rights, or the rights of others, (f) to meet certain legal compliance requirements, for example customs laws and regulations, (g) to U.S., U.K., EEA, Hong Kong and other domestic and overseas regulators and other appropriate legal agencies or authorities, (h) as part of a sale, merger, liquidation, acquisition, or transfer of our business assets, and (i) we may share information with digital advertising and analytics firms so that they may recognize your devices and deliver interest-based content and advertisements to you. The information we share may include your name, zip code, email, device ID, or other identifier. These firms may collect additional information from you, such as your IP address or other related technical information.
Your Elections
You may decide whether we may contact you by email. You may stop email marketing by using the “opt out,” or “unsubscribe” mechanism within our marketing messages. You may decide against allowing cookies to be placed on your device. Additionally, you may modify the personal information that is stored in your Acker Wines “My Account” section on our website.
We will respond to your request as soon as practicable. We may ask you to verify your identity before we can respond to your request. Your request may include providing you with information, correcting any inaccuracies, or removing information.
Children’s Data
IF YOU ARE UNDER 16 YEARS OF AGE, YOU MAY NOT USE OR ACCESS ACKER’S DIGITAL PLATFORMS AT ANY TIME OR IN ANY MANNER. ACKER’S SERVICES ARE LIMITED TO THOSE OF LEGAL DRINKING AGE: 18 IN HONG KONG AND THE U.K. AND 21 IN THE U.S.
We do not accept underaged individuals as clients or knowingly collect data about individuals under legal drinking age.
Information Safekeeping
Acker conducts business throughout the world. We receive data collected locally in the United States and collect data online directly from individuals in countries around the world. Acker may transfer your personal information internationally to other Acker affiliated locations, individuals affiliated with Acker, and to other organizations who need to process your data in connection with your business with Acker;
such data may be processed globally. Your data will be stored on our servers in the United States. We have protections in place for the transfer of data.
We protect your information using a variety of security measures to reduce the risks of loss, misuse, unauthorized access, disclosure, and alteration. However, please note that that no security measures are perfect. You have the responsibility of protecting your online username and password and for the security of information you transmit to us over the Internet.
We will retain your personal information for as long as we have a relationship with you. Once our relationship with you has concluded, we will retain your personal information for a period that enables us to: preserve business records, comply with recordkeeping retention requirements under any applicable legal requirements, defend or bring any appropriate existing or potential legal claims, address any complaints, or preserve historical records of transactions and Property. Once your information is no longer needed for these purposes, we will remove such information.
Your Rights
You may ask us questions regarding the data we retain about you. If you are located in certain jurisdictions, you may have rights under applicable data protection laws. These may include a right to a copy of your personal information, to correct it, remove it, reduce the ways we use it, or to transfer it to other organizations at your request. Furthermore, you may have the right to object to certain processing and, where we have asked for your consent to process your data, to withdraw this consent. Please contact us at privacy@ackerwines.com if you wish to exercise any of these rights.
FOR RESIDENTS OF CALIFORNIA AND VIRGINIA
We may collect the following categories of personal information from and about you:
Categories
Examples
Identifiers
Your name, address, IP address
Internet Activity
Browsing history, search history
Transactions
Your transaction records, Property considered for
your purchase, Property offered for sale by you
Payment information
Tokenized payment information or wire instructions
Demographics
Your gender, age
Location Information
Your general location as inferred from your network
information
Employment Information
Information provided by you for consignment
agreements or shipping
Video and Audio
Video and audio recordings of Acker events
Inferences
Our assessment of certain wines or spirits in which
you may be interested
We share your information for the following purposes: (a) to obtain services to best suit your needs; such as item shipments, mailings, customer account and technology support, secure payment processing, fraud prevention, digital marketing management, and data storage, (b) to coordinate auctions and/or events with our partners, (c) to coordinate events, (d) for legal and compliance purposes, (e) to cooperate with law enforcement or other reasonable requests for information, and (f) to support our business needs.
We disclose all of the categories of personal information described above with service providers that process personal information on our behalf (e.g., data storage providers, email services and Internet service providers), business partners (e.g., event coordinators, professional advisors and consultants), government and law enforcement entities, advertising and marketing companies, and our affiliates.
We also may disclose certain personal information in exchange for services or insights or other valuable consideration. California and Virginia law treat these disclosures as “sales” even if no money is exchanged. We may disclose or “sell” the following categories of information to the third parties listed below.
Categories of Personal Information Disclosed in Exchange for Valuable Consideration as Defined Under
California and Virginia Law
Categories of Third Parties to Whom
this Information Is or Was Disclosed in the Past 12 Months
Identifiers
Digital advertising and analytics
companies, marketing partners, social media platforms, auction partners and event co-hosts
Internet Activity
Digital advertising and analytics
companies, social media platforms, and marketing partners
Transactions
Digital advertising and analytics
companies, auction partners and event co- hosts, and marketing partners
Payment Information
Credit card processors, banks receiving
wire transfers as designated by you
Demographics
Digital advertising and analytics
companies, marketing partners, social media platforms, auction partners and
event co-hosts
Location Information
Digital advertising and analytics
companies, auction partners and event co- hosts
Employment Information
Marketing partners, auction partners, and
event co-hosts.
Video and Audio Information
Auction partners and event co-hosts
Inferences
Digital advertising and analytics
companies, marketing partners, social media platforms, auction partners and
event co-hosts
Residents of California and Virginia have the following rights:
Rights
Explanation
Right to Know
You may request that we provide you with information about the categories of your personal information that we collect, the specific pieces of personal information that we hold about you, the categories of sources from which we collected the information, our reasons for collecting and sharing the information, and the types of third parties
with which we share the information.
Right to Deletion
You may ask us to delete your personal
information, subject to certain exceptions.
Right to be Free from Discrimination
You have the right to not be discriminated
against for exercising any of the rights listed herein.
Right to Opt-Out of “Sales” or the Processing of Personal Information for Targeted Advertising
You have the right for your data to not be exchanged for valuable consideration as well as the right for your personal information to not be processed for targeted advertising
purposes.
Right to Appeal
You have the right to appeal any decision we
make relating to your rights.
Right to Opt-Out of Profiling
For any profiling that may lead to legal or other similar effects, you may opt out of such profiling. However, please note that Acker
does not engage in this profiling.
If you are a California or Virginia resident and would like to exercise any of the rights described above, please submit your request to privacy@ackerwines.com. Please note that we may require specific information from you in order to verify your identity. Furthermore, there may be circumstances where we will not be able to honor your request. We will only use personal information once we have verified your identity and authority to make the request.
FOR EEA and U.K. CUSTOMERS & VISITORS TO ACKER’S SITES AND MOBILE APPS
Data Responsibility
If you transact with Acker from the U.K. or the EEA, then the Acker entity running the auction or retail sale will be the data controller for that data. The name and contact details for this entity will be set out in your consignment agreement, invoice, or https://www.ackerwines.com/terms-conditions/ for the auction or retail sale.
Legal Basis of Data Processing
Under certain circumstances, Acker processes your data with your permission (e.g., when you agree that we may place cookies, or if you ask us to send you information about upcoming events).
On other occasions, Acker processes your data when we need to do this to complete a transaction with you (e.g., for billing you). If it is required for you to provide data for these purposes, we will make this clear at the time. We will also explain the consequences if you do not provide the necessary data (i.e., we will not be able to fulfill a retail sale).
We also process your data when it is our legitimate interest to do so and when these interests are not overridden by law. For example, Acker has an interest in ensuring the security of our events, in learning about the interests of our current and prospective clients, in developing new business opportunities, in maintaining accurate business records, and in ensuring that our websites and apps operate effectively. In circumstances in which we process your personal information to meet our legitimate interests, safeguards are in place to ensure your privacy is protected.
Transfers of Data
Acker transfers personal information to countries outside the EEA and the U.K. including countries with different data protection laws.
Automatic Decision-Making
We may analyze personal information via profiling meaning that we may process your personal information using software that is able to evaluate your personal preferences. Additionally, we may use information about those preferences to support automated decisions about the content, recommendations, and offers we share with you by email or other communications.
Your Rights
You may ask us for a copy of your personal information. Additionally, you may ask us to correct your personal information, delete it, restrict our use of it, or to transfer it to other organizations (subject to local law). You also have the right to object to certain processing and, where we have asked for your permission to process your data, to withdraw this consent so that you may object to direct marketing at any time.
In cases in which we process your data due to our legitimate interest in doing so, you may make an objection. However, these objections may be limited in certain circumstances.
If you have questions regarding your rights, would like to exercise them, or have questions about this Privacy Policy, please contact us via the contact details set forth on page 11. We appreciate you contacting us to update or correct your information. In turn, we will contact you if we need additional information.
Acker is committed to working with you to obtain a just resolution of any complaint or concern regarding your privacy. However, if you have additional concerns that are not resolved or believe that we have not assisted with your complaint or concern, you also have the right to file a complaint with the appropriate data protection authorities.
Third-Party Websites
Our websites may contain links to non-Acker websites. Those websites may collect information about you, and we are not liable for their practices or content they display.
Changes to this Policy
We reserve the right to amend or update this Privacy Policy and any of our privacy practices at any time. We will notify users of this website by posting any updated policy on this page and such changes will be effective immediately and without further notice. Where appropriate, we may notify you directly of changes to the
Privacy Policy either through email or a prominent notice on our website.
Questions
For questions about this Privacy Policy please email us at privacy@ackerwines.com or contact:
Acker Merrall & Condit Company Attn: Legal Department
160 West 72nd Street
New York, New York 10023
Privacy Policy (European Economic Area and Other Non-US Residents)
If you are a resident of the United States, please click here for our Privacy Policy.
Effective Date: 8/17/2020
Last Revised:
Acker, Merrall & Condit Company and its affiliates, including, without limitation, Acker Auction, Inc., Acker, Merrall & Condit (Asia) Ltd, Acker London Ltd., Acker Auction DE, LLC and The Wine Workshop LLC (collectively, “Acker”, “we”, “us” or “our”) advertises, promotes, sells and auctions wine, spirits and other alcoholic beverages, and related products (collectively, “Products”) and provides other information and news related to Products, in a variety of media (collectively with Products, the “Products & Services”). We provide the Products & Services through a variety of methods, including, but not limited to, auctions, consignments, wine seminars, tastings and other events, and general purchases and interactions via our different social media and digital platforms (collectively, the “Offerings”).
Please note that we use CCTV video at our various premises for security reasons. As such, your physical presence at any of our premises may result in your image being recorded and collected by Acker. We retain such video recordings no longer than necessary in view of the purpose for which they were collected.
We consider the privacy of your data and information, whether corporate or personal, to be of paramount importance. Information we gather from you as a customer not only enables the transactions and interactions between us, but also helps us continually improve your experience with us and keep you informed of upcoming auctions, events and other services that might interest you. This document constitutes a notice (the “Policy”) from Acker to all customers or other individuals (“customer” or “you”) whose personal data is provided to or collected by us, by or through any of our Offerings, and which is subject to the General Data Protection Regulation ("GDPR") (Regulation (EU) 2016/679 of April 27, 2016). We will treat personal data which is not subject to the GDPR or the California Consumer Privacy Act of 2018 in the same manner as described in this Policy.
Throughout this Policy, the expression “personal data” refers to any information relating to an identified or identifiable natural person, as defined by the GDPR. This Policy aims to inform you of the conditions under which your personal data is collected and processed by us and the rights that you have regarding this data. We will not sell, share, or rent your personal data to others in ways different from what is disclosed in this Policy.
1. PERSONAL DATA WE COLLECT AND PROCESS.
In the course of our in-person interactions with you, and via our website (the “Website”) and mobile application (collectively with Website, the “Digital Platforms”), we collect the following personal data because it is necessary for the provision of our services in accordance with our Website and Mobile App Terms of Use.
(a) Information Automatically Collected.
Generally:
When you visit our Website (regardless of whether you create a user profile), the following information about your visit is automatically collected by us, as it is sent by your browser when you access any webpage:
• your computer’s or mobile device’s operating system;
• the application or software that you used to access our Website;
• the time you accessed our Website;
• your browser type, language configuration, clicks and page views;
• the terminal with which you accessed our Website; and
• the websites you visited before accessing our Website.
This information is logged automatically and is stored for 7 years, and in any case, for no longer than necessary in relation to the purpose for which it is being processed. The aim of this automatic collection and processing is to obtain visit statistics in order to improve our Website and your experience as a customer. In particular, we use IP addresses to analyze trends, administer the Website and gather broad demographic information for aggregate use. We may use “clear GIFs” (also known as “web beacons” or “pixel tags”) or similar technologies, in the Website and/or in our communications with you, to enable us to evaluate Website usage information about visitors to our Website, target campaigns, upgrade visitor information and know whether you have visited a web page or received a message. A clear GIF is typically a one-pixel transparent image (although it can be a visible image as well), located on a web page or in an e-mail or other type of message, which is retrieved from a remote site on the Internet thus enabling the verification of an individual’s viewing or receipt of a web page or message. A clear GIF may enable us to relate your viewing or receipt of a web page or message to other information about you, including your personal information.
We offer sign-on services that allow you to use third party login credentials to access our Website. You may choose to provide us with access to certain personal data stored by such third party websites. The personal data we have access to varies by website and is controlled by your privacy settings on that website and your consent. By associating an account managed by a third party with your Acker account and authorizing Acker to have access to this information, you agree that Acker may collect, use and store personal data from those websites in accordance with this Policy.
Cookies:
We collect and use cookies via the Website. A cookie is a piece of data stored on your hard drive containing information related to your visit to our Website. We use cookies on certain of our pages to help analyze our web page flow, customize our services, content and advertising, measure promotional effectiveness and promote trust and safety. Cookies track your movement on our Website, including what you view, and your transactions and purchases. They essentially serve to improve and personalize your experience on our Website.
A few important things you should know about our use of these technologies are that:
• we offer certain features that are available only through the use of cookies and are therefore one of the primary ways in which we announce a new feature that was added since the last time you visited our Website;
• we use cookies to help identify you, track information about you and maintain your signed in status;
• most cookies are “session cookies,” meaning that they are automatically deleted from your hard drive at the end of a session;
• you are always free to decline our cookies if your browser permits, although doing so may interfere with your use of our Website or Products & Services;
• you may encounter cookies from certain third parties, known as service providers, that we have allowed on our Website and that assist us with various aspects of our Website operations and services; and
• you also may encounter cookies from third parties on certain pages of our Website that we do not control and have not authorized (for example, if you view a web page created by another user, there may be a cookie placed by that web page).
We also collect and use certain cookies on our Mobile App in order to improve your user experience. We do not use third-party cookies on the Mobile App.
The storage duration of cookies on our Digital Platforms differs depending on the cookie, but is never longer than ninety (90) days.
Google Analytics:
Please note that we use a tool called “Google Analytics”, and tools within it such as Google Tag Manager and Google Firebase Analytics, to collect information about the use of our Digital Platforms. Google Analytics collects use information regarding how often users visit the Digital Platforms, what device they are using and what pages they visit when they do so, and what other sites they visited prior to coming to our Website. We use the information we get from Google Analytics to improve our Digital Platforms. Google Analytics collects only the IP address assigned to you on the date you visit our Digital Platforms, rather than your name. Google’s ability to use and share information collected by Google Analytics about your visits to the Digital Platforms is restricted by the Google Analytics Terms of Use and the Google Privacy Policy, found here.
Disabling Cookies and Google Analytics:
Most web browsers or Flash players have functionalities that can be set to block or refuse the use of cookies on our Website. However, refusing a cookie may, in some instances, hinder or curtail your user experience on our Website or certain areas of it. You may disable all cookies as well as the use of Google Analytics for the Digital Platforms by selecting the “Do Not Track” option available in your user profile, as well as at the bottom of this Policy. By visiting the Digital Platforms without disabling these functions, you accept the collection and use of cookies and of Google Analytics.
(b) Information Directly Collected.
The categories of information that we collect directly from you are: personal details (e.g., name, date of birth), contact details (e.g., phone number(s), email address(es), postal address), transaction information (e.g., bidding or purchase records, shipping details, information about items you purchase or wish to consign or have appraised), limited financial information (e.g., tokenized payment information in connection with your purchases, wire instructions), information about your property in our possession or storage, username and password, and identification information to enable account recovery.
We collect this information from you in person (for example, at one of our wine events, seminars or auctions) or via our Digital Platforms, as further outlined below.
Registration and User Profiles:
In order to use certain features of our Digital Platforms (e.g., placing an order, using our Website or mobile app bidding platforms or viewing information related to an account) and in order to participate in our auctions or certain other in-person events, you must register for a user profile and be granted a username and password. Your password is PHP hash protected. You may register for a user profile using our Digital Platforms or in person at certain Acker events such as live auctions. The following information is collected to create this profile:
• your name and contact information, including your phone number(s) and email address(es).
• if you wish to participate in an auction or make other purchases, billing information.
If your password has been compromised for any reason, you should immediately notify Acker and change your password. We will never request your password or other highly sensitive information via e-mail. If you receive an e-mail or other correspondence requesting that you provide any sensitive information (including your Digital Platforms password or credit card information) via e-mail or to a website that does not seem to be affiliated with our Digital Platforms, or that otherwise seems suspicious to you, please do not provide such information, and report such request to us.
This information is stored until you request the deletion of your user profile, provided that there is no legal requirement for its retention, or until the profile is erased by Acker. The profile will be erased after 7 years of inactivity, in compliance with Article 5(1)(e) of the GDPR.
Orders:
When you order or bid on Products using the Digital Platforms or in-person (such as at our retail store or at a live auction), we may request the following information:
• shipping details, including recipient name and phone number, street address, city, state/province, ZIP code and country (with respect to the purchase of non-auction and auction wines, spirits and other alcoholic beverages, please refer to our Retail Conditions of Sale and relevant auction Conditions of Sale, as applicable, for information regarding shipping and delivery policies);
• billing details, if different from the shipping details (which requires the same information as for the shipping details); and
• credit card information.
This information is used for billing purposes, reporting and to process your order(s).
Shipping and billing details are stored until you request the deletion of your user profile, provided that there is no legal requirement for its retention, or until the profile is erased by Acker, as stated above. Your credit card information is tokenized and such token is stored until you remove this functionality from your user account, or until your user account is deleted.
Contact Form:
You may use the Website contact form to send a message to Acker, or request information, including in order to exercise your rights as detailed in this Policy. When filling out the contact form, we request the following information:
• name;
• email address;
• type of assistance required; and
• your message (via a free-form field).
This information is required in order to process your message and answer your request, and is stored only as long as necessary in order to fully process your request.
2. PROMOTIONAL CONTENT.
We offer promotional and marketing emails to keep you updated on our Offerings, including sending you Product recommendations and other non-transactional communications about us and our partners (“Promotional Content”). We request user consent prior to sending you Promotional Content.
Consent may be given by you upon registration for a user profile by expressly opting in to receive Promotional Content. Receipt of Promotional Content is opt-in only, and you must communicate an email address to subscribe to it. You can choose to unsubscribe at any time, by: (1) clicking the “unsubscribe” link at the bottom of any email containing Promotional Content, which will take you to your account on the Website; (2) directly through the account section on either of the Digital Platforms; or (3) by contacting Acker directly.
The information discussed in this Section 2 may also be processed in order for us to more effectively market our Offerings so that they are relevant to you, as necessary for our legitimate interest in conducting direct marketing to increase sales or to the extent you have provided your prior separate consent.
3. PERSONAL LOCATION AND SHARING.
(a) Data Location.
We inform you that the personal data we collect is located in the United States of America. By using our Digital Platforms, you are consenting to the transfer of your personal data to the United States of America, and you acknowledge that the personal data may be transferred for the purpose of fulfilling our business transactions with you.
(b) Sharing with Third Parties.
We inform you that we may share your information with industry partners in order to improve the manner in which we promote our Products & Services, and in order to host our live events (such as auctions). We also share aggregated demographic and use information with analytics services in order to market our Products & Services more effectively.
We outsource certain activities such as order shipments, marketing assistance, postal and email delivery, customer service, and data analysis, and we use a credit card processing company to bill users for goods and services. These companies do not retain, share, store or use personal data for any secondary purposes and are not allowed to use personal data, except for the purpose of providing these services. Our agreements with these third parties contain data protection clauses that guarantee appropriate customer safeguards.
4. LINKS.
The Website may contain links to other websites. Please be aware that Acker is not responsible for the privacy practices of such other sites. We encourage you to be aware when you leave our Website and to read the privacy statements of all other sites you visit that collect personal data.
5. YOUR RIGHTS.
You have the following rights regarding your personal data that is collected and processed by us.
We will attempt to notify each recipient to whom your personal data has been disclosed (unless this proves impossible or involves disproportionate effort) when you notify us of a rectification or erasure of your personal data or a restriction of processing.
(a) Right of Access.
You may request access to your personal data that we collect and process. Should you request such access, we will provide you with a copy of all your personal data in our possession as well as all legally required information, including:
• the purposes of the processing;
• the categories of personal data concerned;
• the recipients to whom the personal data have been or will be disclosed;
• the duration of storage of the personal data; and
• further information on your rights regarding your personal data.
(b) Right to Data Portability.
You have the right to data portability of your personal data. This right differs from your right to access since it only relates to the personal data you provided us with (for example, automatically collected data is not included). This right allows you to receive this personal data in a structured, commonly used and machine-readable format in order for you to be able to transfer this personal data to another data controller or processor.
(c) Right to Rectification.
You may, at any time, request that we rectify inaccurate or incomplete personal data concerning you and we will proceed accordingly and promptly.
(d) Right to Erasure (a.k.a. “Right to be Forgotten”).
You may request the erasure of your personal data provided that one of the following conditions apply:
• your personal data is no longer necessary in relation to the purposes for which it was collected or otherwise processed;
• you withdraw your consent for the processing and there is no other legal ground for the processing (this only relates to the personal data collected for Promotional Content purposes);
• you exercise your right to object to the processing of your personal data, as detailed below;
• your personal data was unlawfully processed; or
• your personal data has to be erased to comply with a legal obligation to which we are subject.
(e) Right to Object.
Where your personal situation justifies it, you may object to the processing of your personal data by us when this processing is carried out in our legitimate interests. You may also, at any time, object to the processing of your personal data by us when this processing is carried out for marketing purposes.
(f) Right to Restriction of Processing.
You may ask for the restriction of the processing of your personal data when one of the following applies:
• where you contest the accuracy of your personal data, you can request the restriction of the processing of your personal data for the period required to verify your claim;
• where the processing is unlawful, you may choose to request the restriction of the use of your personal data instead of requesting its erasure;
• if we no longer need your personal data for the purpose of the processing, but you require this data for the establishment, exercise or defense of legal claims; or
• where you objected to the processing of your personal data carried out in our legitimate interests, you may request the restriction of this processing while we investigate your claim.
6. SECURITY.
We have implemented appropriate security measures in order to protect your personal data, both online and off-line. These include firewalls, IP blacklisting, protections from brute force attacks, and other general security practices such as disabling ping-backs and track-backs. We also utilize sophisticated third-party providers for secure server infrastructure, as well as other generally accepted physical safeguards.
7. NOTIFICATION OF CHANGES.
We will update this Policy when necessary to reflect customer feedback, changes in our Products & Services, or legal changes. When we post changes to this Policy, we will revise the “Last Revised Date” at the top of the Policy and will also describe the changes at the top of the Policy, so you are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it.
If there are material changes to the Policy, including how we will use your personal data, we will notify you either by prominently posting a notice of such changes before they take effect or by directly sending you a notification. We encourage you to periodically review this Policy to learn how Acker is processing your information. A banner informing you of any material changes in this Policy will be displayed on the Website for two weeks after the change.
If at any point we decide to use personal data for purposes incompatible with those stated at the time it was collected, we will notify you by way of an email whenever possible, or by displaying a banner requesting consent to this change for two weeks before the change takes place. You will have the option to refuse the change and request the deletion of your user profile and personal data.
8. NON-PERSONAL DATA.
This Policy discloses the treatment of any personal data provided to or collected by Acker via any of our Offerings. The treatment of any non-personal data is addressed in our Website and Mobile App Terms of Use.
9. CONTACTING US AND EXERCISING YOUR RIGHTS.
Should you have any questions regarding this Policy or should you wish to exercise one or more of the rights detailed above in Section 5, you may contact us at privacy@ackerwines.com. An identity verification document will be required should you wish to exercise any such rights in order to ensure that no third party can gain access to your personal data.
Should a disagreement arise (including where a dispute is not resolved by an amicable settlement), you can always contact the competent personal data protection authority to lodge a complaint. Our lead data protection authority is the following:
• in the United Kingdom, the ICO, whose website is accessible at the following address: https://ico.org.uk.
Acker U.K. Privacy Notice
Revised April 28, 2022
Acker U.K. is committed to protecting your personal data and complying with data protection legislation, including the General Data Protection Regulation. This Privacy Notice explains why we collect and how we process personal data and how to contact us if you have any queries or would like to manage your personal data.
We will:
• keep your personal data safe and secure;
• not to sell your personal data;
• allow our clients to review their marketing preferences at any time.
What personal data do we collect and why do we process it?
We process the following personal data to run our business:
Suppliers:
We collect the individual names, contact details and payment details of our suppliers in order to administer contracts which we have with them and to provide services to our clients.
Clients:
We collect the names, contact details and regular delivery instructions (including details of bonded accounts as relevant) of our clients to enable us to tell you about the goods and services that we have on offer and, in the event that you place an order, to enable us to fulfil your order. We rely on our clients to keep us updated with any changes they may wish to make to these details.
We share with the bonded warehouse and logistics services we use the client’s name, billing address, delivery address, phone number and email address.
How do we hold this data?
We hold this information on our secure servers, and on hard copies of invoices and delivery notes which are held on file and stored in a secure office environment. Access to the information on the servers and to the records is restricted to the employees of the Company and its affiliated entities.
We hold this information for as long as we are required to by law, for as long as is necessary to fulfil our obligations under contracts that we have with you, to maintain a record system of inventory, deliveries and/or transfers, and to meet our legitimate business purposes.
Do we share your personal data?
We will only share your personal data in order to:
• fulfil any orders you place with us;
• arrange deliveries and/or transfers to bonded storage and third-party carriers that perform deliveries/logistical services on behalf of the Company.
Third party carriers and storage facilities that process personal data on our behalf only do so in line with our instructions and are subject to the same data privacy laws as we are.
We do not sell or otherwise share your data with any third parties for marketing purposes.
Your rights
You have rights as an individual that you can exercise in relation to personal data we hold about you, including the right to request a copy of the information we hold about you and the right for it to be corrected or deleted. You can read more about these rights by visiting the Individual Rights section of the Information Commissioner’s website: www.ico.org.uk.
You also have the right to lodge a complaint about how your data is processed with the Information Commissioner’s Office. To find out more, visit the Make a Complaint section of the above referenced website.
Changes to our Privacy Notice
We may make changes to this Privacy Notice, however, the current version will always be available on our website (uk.ackerwines.com) or on request. This Notice was last updated on 28th April 2022.
How to contact us
The data controller is Acker U.K. Ltd., which is registered with the Information Commissioner’s Office (Registration Number ZB325778).
Acker U.K. Ltd.
527-529 Metal Box Factory
30 Great Guildford St
London
SE1 0HS, United Kingdom
Telephone: +44 20 3940 5366
Email: orders@ackeruk.com
零售销售条款
1. 一般条款：接受本销售条款
亲爱的客户：
感谢您的惠顾。经www.ackerwines.com网站、以电子邮件或透过电话向Acker, Merrall & Condit Company (AMC) 选购，即代表您就所有从AMC购入的葡萄酒同意本零售销售条款（「本条款」）。本条款会随时由AMC全权酌情进行修改或修订而不作事前通知。您继续使用本网站，即表示您接受经修改或修订的条款。
2. 法定年龄要求、核实与附有照片的身份证明
根据美国的法例要求，葡萄酒与酒精饮品只可出售及付运予年满21岁或以上之人士。从AMC的网站、以电话、电子邮件或亲身购买，即代表您确认您与任何收货人士均年满21岁。
亲身取货人士必须出示附有年龄证明的带有照片之身份证明文件。如由其他人代您提货，AMC只有在事前透过上述电子邮件地址或传真号码接获有关提货人士身份的书面通知，才会把您的已购产品发放给该名其他人士。
首次购买者可能需要提供有效身份证明的副本以供AMC存档。副本可透过上述传真号码、电子邮件地址或亲身交予AMC。
注意事项：联邦与州的规例要求任何含有酒精的付运物品均须由年满21岁人士亲自签收。联邦规例另外亦禁止向邮箱地址付运酒精。因此，我们建议您安排送货至住宅或商业地址。
如订单因为未能提供令人满意的年龄证明而被退回AMC，您须负责支付所有由此引致的运费。
3. 购买与付款
客户须于收到发票或订购确认时付款。在受限于以下第4条之条款，本公司仅在您全数支付订单的款项及所有相关费用和开支后，才会按照您的指示付运、运货或发货。AMC 接受现金、支票、汇票、电汇以及MasterCard、Visa和 American Express信用卡。AMC保留在收到付款前随时取消任何订单的绝对酌情权。
4. 收货、储存、运货与销售税适用情况
(a) 到店取货
您可以亲临纽约市内的AMC零售店提取已购买的葡萄酒。请在结账时选择「到店提取」。请于结账时指明您希望收货的日期，AMC将尽力确认您所指定的取货日（视乎您订购的货品是否齐全而定）。订单必须于指定取货日起计48小时内提取；未能于指定时间内提取的葡萄酒将被转移至AMC的仓库，而AMC可酌情决定收取$50转移费及／或取消订单。
请致电+1 212 787 1700或以电邮store@ackerwines.com与AMC联络安排取货事宜及查询零售店事宜，或电邮至rarewine@ackerwines.com查询精品与罕有产品事宜。您可到AMC的曼克顿店取货，地址为160 West 72nd Street, New York, NY 10023。
(b) 本地运送
应客户要求及根据本公司酌情决定，AMC将为曼克顿区内的零售购货安排免费送货，并在纽约州内其他的地方安排送货(运费由买方承担)。
(c) 贮存
(i) 贮存。已购买的葡萄酒只有在全数付款后方可提货。如果您要求送货至纽约州以外的美国境内，您须就此独自承担风险。在此情况下，除下列第4(e)条规定的其他情况外，所有已购买的葡萄酒将会转移到PEP Logistics。PEP Logistics 作为买方的代理，会在您购买葡萄酒后的三十(30)天提供点内贮存，以便安排运货。
若任何已购买的葡萄酒在销售日后的三十（30）天内，未能完成运输安排或未被领回，该已购买的葡萄酒可由PEP Logistics移至协力厂商存仓设施（或，由PEP Logistics转移至其选择的存仓设施），您在收回有关货物前应向PEP Logistics全数支付所有其间产生的与有关货物相关的包装、处理、运输、保险及协力厂商存仓的费用。由销售日起计九十（90 ）天内，不论您因为任何原因而未有从PEP Logistics提取任何已购买的葡萄酒， PEP Logistics获授权采取任何其认为适当的行动以处理有关货物，除非PEP Logistics与您另有书面约定。PEP Logistics可以，自行作出选择，判定有关货物已被您放弃，及/或除了基于就上所述事项征收成本和费用以及PEP Logistics根据普通法和衡平法所享有的任何其它权利外，PEP Logistics有权自行决定在任何地点以PEP Logistics自定的价格，公开或私下（包括任何一个或多个PEP Logistics或其他拍卖会或在一个或多个零售销售点）重新出售有关货物，并且从出售所得的总收益中扣除其法律费用和开支以及其他惯常成本，包括但不限于销售方佣金和买方溢价 （在拍卖中售出的情况下）、广告费、协力厂商销售佣金和包装、处理、运输、保险和额外的协力厂商仓储费。在任何情况下，PEP Logistics不会承担任何在销售日后三十（30）天内未被提取的葡萄酒之任何损失或损坏的责任。
(d) 州外运送。
i) 您须单独负责在纽约州以外但在美国境内运送的已购买的葡萄酒，并须负上遵守适用法律的所有义务。
ii) 受限于适用法律，应您的要求，PEP Logistics 可担任代理人代您安排合适的承运公司。曼哈顿区外的运送由您支付。所有透过PEP Logistics安排在美国境内的运送，会由PEP Logistics 纯綷担任您的代理人。承运公司在收到有关货物时，会以「离岸价」方式运送有关货物，损失或损坏风险会转移至纽约的您。运费必须由您预先缴付或到付。PEP Logistics亦可能会收取服务费。付运可于收取所有付款及资金存进AMC的账户后作出安排。买方应容许5个工作天以作美国境内付运的安排，及10个工作天以作美国境外及国际付运的安排， 美国境外及国际付运可能要求提供海关文件或特别路线安排。
iii) 经由任何承运公司付运已购买的葡萄酒而引起的任何损失或损毁以及有关风险将由买方及/或承运公司全部承担。AMC对您的货物在运输途中发生的任何变坏、损毁或损失，概不负责。
(e) 所有权及税项
含酒精饮料的所有权及拥有权从AMC转移至纽约的您，而产品从纽约运往您选定的目的地之责任由您独自承担。您可在AMC位于曼哈顿区提取已购买的葡萄酒 (见上文第4(a) 条)。在受限于上文第4(c) 及 4(d) 条，您亦可安排独立运货。
i) 交付到获许可的州份。对于运往AMC领有牌照的(包括纽约州)或持有直接面向消费者运输许可的州份的订单，产品的所有权及拥有权会在纽约转移给您。AMC可安排付运，而销售及其他适用税项将根据目的地国家的要求征收。
ii) 交付到美国所有其他地点。含酒精饮料的所有权及拥有权会在纽约转移给您，而产品从纽约运往您选定的目的地之责任由您独自承担。您可在AMC位于纽约市区提取产品，或在受限于上文第4(c) 及 4(d) 条，您亦可独自安排运货。纽约州的销售税将适用于所有情况。由于AMC不允许将产品运送到其未持有直接面向消费者运输许可的州份，因此，尽管您可能需要任何其后州外的付运安排，产品亦只可在纽约运送给您或您的代理。
iii) 运送到美国境外。含酒精饮料的所有权会在纽约转移给您。如有关货物交由买方雇用或代理的货运代理商或国际承运人直接出口到美国境外，您将不用支付销售税。
如买方为持牌及/或已登记的经销商，并向AMC提供正确填写的转售证明书，可能免缴销售税。
一些司法管辖区亦可能会向入境的付运有关货物征收消费税。如有需要，AMC或PEP Logistics(作为您的代理人) 可向您收取有关消费税。
(iii) 我们对付运含酒精饮料的合法性不作出任何陈述。您有责任遵守有关付运的所有法律。PEP Logistics 或 AMC (如适用) 透过为您安排运送含酒精饮料向您提供服务，并为您担任代理人。透过使用PEP Logistics 或AMC提供的服务，您表示您就购买、运送及交付含酒精饮料有遵守当地及州份的法律。您进一步表示您已获得任何所需的许可、支付任何所需费用、并透过适当获许可的中介机构行事(如有需要)，及您在法律上有权管有含酒精饮料，您在法律上有权收取订购的数量，并且您及接收含酒精饮料产品的人员至少年满21岁。
(d) 订单处理时间
订单一般在购买后五（5）个工作天内处理和付运。然而，付运可能因为各种因素而出现延误而需时更久。紧急订单 (例如：特别付运) 的要求必须以电话或电子邮件提出，且有待确认。此类要求可向AMC提出，而AMC将在适当情况下转交PEP Logistics处理。
5. 送货尝试
AMC将尝试交付获授权付运的已购物品一（1）次（运往AMC领有牌照的州份）。如任何此类订单被退回，AMC将联络您并通知您有关退回事宜，然而 AMC 保留把订购物品退回库存、扣除送货成本后把余款退回您账户的权利。如需就零售店购货作特别安排，请以电邮store@ackerwines.com联络AMC，或电邮至rarewine@ackerwines.com查询精品与罕有产品事宜。
透过一般承运商付运的货品（包括经由PEP Logistics作出安排的付运），一般会包括三（3）次送货尝试。如订单此后仍无法送达，将会被退回AMC。
6. 退货与取消
不论已购物件是否仍被AMC管有或正在运送给您，及不论AMC能否提供付运安排的协助，所有物件均以「现状」出售，且在您下单时已为最终决定。除非涉及重大付运或库存错误，而有关问题于九十（90）日内汇报，否则不得退货与取消；在此情况下，有关事宜将按个别情况考虑。
7. 酒瓶状况与价格差异
据AMC所知悉，所有葡萄酒在AMC管有期间均以妥善条件储存。每瓶葡萄酒在加入AMC的零售库存时，已进行了尽可能准确的检查和描述。然而，买家在购入较陈年和脆弱的葡萄酒时，必须对自然程度的耗损和一般状况给予适当宽容。除非另有所指，10年以下的葡萄酒可被视为状况良好。
8. 保险
AMC（在获授权与持有相关牌照的情况下）与PEP Logistics向与他们有付运安排的本地客户送货。AMC的保险承保在您的订单由一般承运公司持有时因破损或盗窃而产生的任何损失，不论运送安排是否经由AMC或透过PEP Logistics安排。保险并不承保因充公而引致的损失，或由于长时间离开冷藏环境或在不设冷藏的运送或未有采用合适隔热的运送而引致的极端高温或低温引发之损害。如您收到的已购买的货物在运送时破损，您必须在送货后的三（3）天内以书面通知 AMC。如付运货物未有送抵，您必须在预计送货日期后的三（3）天内以书面通知 AMC，让我们可处理您的申索。
9. 天气条款
如付运时的温度在华氏 80度以上或华氏 30度以下，AMC 保留拒绝付运葡萄酒的权利，除非您已书面同意承担所有因极端温度对付运产生的责任与损害风险。
美国拍卖销售条款
US Auction Conditions of Sale
Revised April 28, 2023
1. BUYER’S AGREEMENT.
By bidding at auction, each bidder (“Bidder”) agrees that these Conditions of Sale (“Conditions of Sale”) constitute the agreement between Bidder, on the one hand, and Acker Auction DE, LLC ( “Acker Auction DE”), for Delaware live auctions, Acker Merrall & Condit Company (“AMC”) for California wine web auctions and/or Acker Auction, Inc. (“Acker Auction”), for live New York or web auctions for spirits, and Acker Merrall & Condit Co. (“AMC”), for web auctions for wines (each respectively and together, “Acker” or the seller/consignor (the “Seller”), on the other hand, with respect to the sale of the property listed in the auction catalogue (in whatever format published) (“Property”).
Acker may amend these Conditions of Sale or the catalogue from time to time and at any time through posted notices, addenda, or errata or through oral salesroom announcements during the sale. By bidding at auction, Bidder agrees to be bound by all of the terms and conditions of these Conditions of Sale and accepts personal liability to pay the purchase price, including the Buyer’s Premium (as defined below), taxes and any other applicable charges, for any successful bid. If the Bidder is the successful bidder by virtue of being the highest bidder accepted by the auctioneer, or has otherwise agreed to purchase any lot, wine or other item, the Bidder is referred to herein as the “Buyer.”
2. ACKER AS AGENT.
Except as otherwise stated in these Conditions of Sale, Acker acts strictly as agent for the Seller.
3. BEFORE AUCTION.
(a) Lots. Property is divided into separate groupings as determined by Acker in its sole and absolute discretion and each such grouping (a “Lot”) is subject to separate bidding at auction.
(b) Inspection. Prior to auction, Bidder is advised to physically inspect any Property in which Bidder is interested in bidding and to rely on such inspection, as opposed to any descriptions in the catalogue or elsewhere.
c) Experts. Acker may seek views of outside experts on certain Property either before or after the sale. Some Property may be marked to indicate, or show other indicia, that it has been inspected by an expert (including visible writings, stampings and cut capsules).
(i) Bidder Registration. In order to bid at auction, Bidder must have an account with Acker or its affiliates. Bidder can open such an account by: (A) completing and submitting a Bidder Registration form; (B) completing and submitting an Absentee Bid form; or (C) creating such account online (at www.ackerwines.com) or through the “Acker Wines” mobile app (available for downloading at the Apple App Store or Google Play Store). In connection therewith, Bidder will be required to provide the card number, expiration date and security code for an active credit or debit card (Visa, MasterCard or American Express), which Bidder authorizes Acker and its affiliates to validate.. Acker and its affiliates may also require Bidder to provide bank or other financial references. Acker and its affiliates retain the absolute right not to open or to close an account for any prospective Bidder and to refuse any prospective Bidder admission to, or participation in, any auction. Bidders also agree to provide Acker with such information as Acker may reasonably require, including a government issued identification containing a photograph, such as a passport, identity card or driver’s license. Acker may use this information to verify Bidder’s identification and for other screening and due diligence purposes pursuant to its Privacy Policy (https://www.ackerwines.com/terms-conditions/#legal-privacy), which is incorporated by reference. If Bidder does not agree to the terms of the Acker Privacy Policy, please refrain from providing any personal information and cease any use of Acker’s website, apps, or other digital assets.
(d) Absentee, Telephone, Online and Mobile App Bidding. Prior to the sale, Bidders may make arrangements with Acker to participate at auction by absentee or telephone bidding. Bidder may also participate in the sale by bidding through Acker’s and its affiliates’ online and/or mobile app bidding platforms, which participation shall be subject to the Website and Mobile App Terms of Use (available at https://www.ackerwines.com/terms-conditions/).
Bidders wishing to participate by absentee bidding must complete and submit an Absentee Bid form to Acker in advance of the sale. All absentee bids must be placed in United States Dollars. If Acker receives identical absentee bids for any particular Lot and such bids are the highest amount for that Lot at auction, the winning bid for such Lot shall be determined by the auctioneer in its sole and absolute discretion; provided that the exercise of the auctioneer’s discretion is not in a discriminatory manner otherwise prohibited by applicable law. The acceptance of absentee, telephone, online and mobile app bids for any Lot in a live auction is subject to the sole and absolute discretion of the auctioneer. With respect to bids placed through the online or mobile app bidding platforms, any online and mobile app notifications concerning Bidder’s bid status may be overridden by the auctioneer. As such, even if Bidder receives an online or mobile app notice indicating that its bid has been accepted, please be advised that the auctioneer may determine otherwise in its sole and absolute discretion, and the auctioneer’s decision shall be final. Acker offers complimentary absentee, telephone, online and mobile app bidding solely as a convenience to its clients. In no event shall Acker or its affiliates or auctioneer (or any of their respective officers, directors, shareholders, members, employees, attorneys, representatives, agents or assigns) be liable for any errors, omissions or failures relating to, arising from or in connection with the execution (or failure to properly execute) any absentee, telephone, online or mobile app bids.
4. AT AUCTION.
(a) Catalogues. Bidder is advised to read the print or a PDF copy of the catalogue in its entirety. While Acker has attempted to describe each Lot in the catalogue accurately, in no event shall Acker be liable for any error or omission in any such description. Acker retains the absolute right to amend any description in any manner prior to and during the auction. Classifications in the text are for identification purposes only and are based on standard sources. Each statement regarding Property, whether oral or written, and whether made in the catalogue, an advertisement, bill of sale, invoice, addendum, notice, announcement, email, or other written or oral communication, is a statement of OPINION ONLY and should not be relied upon by any Bidder. Bidder must make appropriate allowances for natural variations of ullages, and conditions of cases, bottles, labels, caps, corks, capsules, and wine and spirits. In no event shall Acker be required to accept a return, offer credit for, or adjust the price of any Property after delivery except under the terms stated in Section 5(e) below. Images appearing in the catalogue or elsewhere are for illustrative and informational purposes only and may not reveal defects or imperfections in any Lot. Bidder is advised not to rely on images in determining whether to bid on Property and is further advised to personally inspect any Property in which Bidder is interested in bidding prior to placing any bids. ALL PROPERTY IS SOLD “AS IS”.
(b) No Representations, Warranties or Guarantees. ACKER AND ITS AFFILIATES, AUCTIONEER AND SELLER (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) MAKE NO ORAL OR WRITTEN EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, ACCURACY, THE CORRECTNESS OF ANY CATALOGUE DESCRIPTION OR OTHER DESCRIPTION AS TO THE ORIGIN, PHYSICAL CONDITION, SIZE, QUALITY, RARITY, AUTHENTICITY, ATTRIBUTION, VALUE, ESTIMATED VALUE, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITION HISTORY, POTABILITY, LITERATURE, HISTORICAL RELEVANCE OR BIBLIOGRAPHIC REFERENCES CONCERNING ANY PROPERTY.
i) Non-Fungible Tokens. From time to time, Acker may offer at auction a Property that is associated with a non-fungible token (“NFT”). NFTs are unique software identification codes recorded in embedded “smart contracts” that leverage blockchain technology to identify the rightful owner, chain-of-title, and original issuer of the NFT.
(a) Without limiting the generality of the Section 4(b) above and notwithstanding anything to the contrary herein, ACKER, ITS AFFILIATES AND SELLER (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) cannot
and do not represent or warrant that an NFT is reliable, current, or error-free, meets Bidder’s requirements, or that defects in the NFT will be corrected. Acker cannot and does not represent or warrant that an NFT or the delivery mechanism for the NFT are free of viruses or other harmful components.
(b) Bidder acknowledges and agrees that ownership of an NFT carries no rights, express or implied, other than property rights to the NFT. Bidder acknowledges and agrees that NFTs may be issued by third parties and not by Acker itself, and that the transfer of title to the NFT may be subject to separate terms and conditions established by the issuer of the NFT and applicable to all subsequent owners. Similarly, Bidder acknowledges and agrees that NFTs may be issued by Acker and that transfer of title to the NFT will be subject to separate terms and conditions established by Acker and applicable to all subsequent owners. All Bidders should refer to catalogue descriptions for a synopsis of key supplemental terms that may be applicable to Lots that include NFTs.
(c) Bidder acknowledges and agrees that there are risks associated with purchasing and holding NFTs. By purchasing, holding and using NFTs, Bidder expressly acknowledges and assumes all risks associated therewith including, but not limited to, risk of losing access to the NFT due to loss of private key(s), custodial errors or purchaser errors, risk of mining attacks, risk of hacking and security weaknesses, risk of unfavorable regulatory changes, actions or intervention in one or more jurisdictions, risks related to token taxation, personal information disclosure, fraud, counterfeiting, cyber-attacks and other technical difficulties that may prevent access to or use of NFTs, risk of uninsured losses, unanticipated risks, volatility and market risks, such that the value of NFTs are subject to the potential for permanent or total loss of value.
(d) Bidder acknowledges that Bidder has sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of cryptographic tokens (like NFTs), token storage mechanisms (such as token wallets), blockchain technology and blockchain-based software systems to understand these terms and to appreciate the risks and implications of purchasing and owning NFTs. Bidder acknowledges that Bidder has obtained sufficient information to make an informed decision about owning an NFT, including carefully reviewing the terms of the applicable smart contract and the NFT and fully understands and accepts such terms.
(e) Bidder acknowledges that there is substantial uncertainty as to the characterization of NFTs and other digital assets under applicable law. Bidder represents and warrants that Bidder has the right to purchase and own an NFT in compliance with applicable laws and regulation relating to such purchase and ownership in Bidder’s jurisdiction.
(c) Reserve Price. Each Lot is sold subject to a reserve price, which is the minimum price below which the Lot will not be sold (unless the auctioneer choses, in its sole and absolute discretion, to accept a lower price and Acker pays the Seller as if the Lot had sold at the reserve price). While Acker has the right to raise or lower the reserve price at any time prior to the time the Lot is opened for bidding by the auctioneer during the live auction, under no circumstance shall the reserve price for a Lot exceed the low estimate for that Lot as printed in the catalogue or as amended by any oral or posted notice. The reserve price for each Lot is available to prospective Bidders upon request, but Acker shall have no ongoing obligation to notify a prospective Bidder who has been informed of any reserve price if such reserve price has thereafter been changed.
d) Symbol Identifying Interest in Certain Lots. If Acker or its affiliates has a financial interest in any Lot, including a full or partial ownership interest or the provision to the Seller of a minimum price guarantee, such Lot will be identified in the catalogue by the symbol *. Any such financial interest may be held by Acker or its affiliates or jointly by Acker or its affiliates and a third party. Acker or its affiliates and any third party holding a financial interest in a Lot jointly with Acker and/or its affiliates benefit financially if such a Lot is sold at or above a particular price and may incur a loss if it is not.
Notwithstanding the foregoing, Bidder shall be deemed to have waived any further claim against Acker and its affiliates as to the failure to provide disclosures beyond those statutorily required to the maximum extent permitted by applicable law.
(e) Estimates. Each Lot in the catalogue is accompanied by a low and high estimate of the selling price, which estimates exclude the Buyer’s Premium (as defined below), taxes and any other applicable charges. While estimates are intended as a general guide for prospective Bidders, in no event do they constitute either a representation or prediction of an actual selling price or value and should not be relied upon by Bidder as such. Acker reserves the right to revise estimates at any time prior to the time the Lot is opened for bidding.
(f) Bidding.
(i) Bidder Warranties, Representation and Covenants. By bidding at auction (whether in person or through an agent, or through absentee, telephone, online, or mobile app bidding, or by other means), Bidder warrants, represents and covenants that: (A) Bidder is at least twenty-one (21) years of age; (B) Bidder has the legal authority, right, and capacity to buy, receive, possess and otherwise deal in any Lot purchased; (C) any bids made by Bidder or on Bidder’s behalf are not pursuant to any anti-competitive agreement and are otherwise in compliance with all applicable laws;
(D) any funds used to pay for Property were not directly or indirectly obtained from any criminal activity; and (E) Bidder (and any other party or entity on whose behalf Bidder may be bidding or acting) is not subject to any trade sanctions, embargoes or any other restrictions on trade in the United States or any other jurisdiction in which Bidder or any such other party resides or conducts business. For the avoidance of doubt, if Bidder is bidding as an agent, each of the foregoing representations and warranties are made on behalf of both Bidder and its principal.
(ii) Bids per Lot. Unless otherwise announced by the auctioneer, all bids are per Lot in consecutive numerical order as they appear in the catalogue.
(iii) Bidding Up to the Reserve Price. Subject to the auctioneer’s sole and absolute discretion, bids shall be entered in the order in which they are received. The auctioneer may open bidding on any Lot by placing a bid on behalf of the Seller. The auctioneer may further bid on behalf of the Seller up to but not at or exceeding the amount of the reserve price by placing successive or consecutive bids for the Lot, or by placing bids in response to bids placed by any other Bidder.
(iv) Bidding by Acker. Acker and its’ affiliates reserve the right to bid for their own accounts or to procure the making of a bid on their behalf and provide notice of such right in their, online auction platform(s), and prior to live auctions in accordance with applicable law. Neither affiliates will bid in auctions held in New York by Acker Auction Inc.
(v) Bidding by Acker Employees. Acker reserves the right to permit its employees (in the sole and absolute discretion of Acker) to bid for their own accounts on any Lot in the sale. Employees shall bid only by absentee bid submitted prior to the auction and otherwise comply with our employee bidding procedures. Employees may bid at a discounted Buyer’s Premium. Acker’s discount policy shall be disclosed to any Bidder who requests it. Acker may deny discounts for any particular auction on prior notice before such auction takes place. Employees will not be eligible for a discounted Buyer’s Premium on charity auctions such as the auctions to benefit World Central Kitchen (“WCK”).
(vi) Bidding Not Reaching the Reserve Price. If bidding on a Lot does not reach the reserve price, the auctioneer may remove the Lot from sale. At the time of such removal and before bidding on another Lot begins, the auctioneer shall announce that the removed Lot has been “passed”, “bought in” or other term of similar meaning.
(vii) Hammer Price. The Bidder making the highest bid accepted by the auctioneer will become the Buyer. The striking of the auctioneer’s hammer marks the acceptance of such bid as the “hammer price” and the creation of a contract for sale between Seller and Buyer. The auctioneer has discretion to reopen bidding at any time during the auction in which case no contract shall be formed until such final bidding is completed.
(viii) Bidding Increments. The following are the bidding increments that will generally apply to bids, whether placed in person or through an agent, or through absentee, telephone, online, or mobile app bidding, or by other means; provided, however, that all increments during an auction are subject to change or modification in the sole and absolute discretion of the auctioneer. Any absentee bid submitted in an incorrect bidding increment will automatically be rounded down to the closest correct increment.
Current Bid Bidding Increments
- $0 up to $1000 $50
- $1000 up to $2000 $100
- $2000 up to $3000 $200
- $3000 up to $5000 $200, $500, $800
- $5000 up to $10,000 $500
- $10,000 up to $20,000 $1000
- $20,000 up to $30,000 $2000
- $30,000 and more Auctioneer’s Discretion
(ix) No Liability for Bidding Errors. In no event shall Acker or its affiliates or auctioneers (or any of their respective officers, directors, shareholders, members, employees, attorneys, representatives, agents or assigns) be liable for any errors, omissions or failures relating to, arising from or in connection with the execution (or failure to properly execute) of any bids, whether placed in person or through an agent, or through absentee, telephone, online, or mobile app bidding, or by other means, including errors or omissions relating to the loss of connection with the internet or Acker’s on-line or mobile app bidding platforms.
(g) Parcel Lots. In the event that the catalogue lists a sequence of Lots carrying the same estimates and consisting of the same type of wine or spirits, quantity and bottle size (each a “Parcel”), Buyer of the first Lot in such Parcel may, in the sole and absolute discretion of the auctioneer, be granted the option to buy any or all additional Lots in the Parcel for the same hammer price if there is no higher absentee bid on any subsequent Lot within the Parcel. If the option is not exercised on all such Lots, the auctioneer will open bidding on the next unsold Lot and may elect to offer the Buyer of that Lot the option to take any or all of the remaining Lots in the Parcel. Bidding shall continue in the same manner until all Lots in the Parcel have been offered and declared sold or unsold by the auctioneer.
(h) Auctioneer’s Discretion. Acker and/or the auctioneer shall have the sole and absolute discretion to: (i) withdraw any Lot; (ii) divide any Lot; (iii) combine any two or more Lots; (iv) accept or refuse any bid (whether made in in person or through an agent, or through absentee, telephone, online, or mobile app bidding, or by other means); (v) advance the bidding (in accordance with Section 4.5.(iv) above), including changing the increments, in such a manner as deemed appropriate; and (vi) in the event of error or dispute or multiple bids of the same amount, determine the successful bidder, continue the bidding, cancel the sale, or reoffer and resell the disputed Lot. Wherever Acker and/or the auctioneer exercises such discretion, its decision shall be final, binding, and conclusive in all respects.
(i) Extension of Internet Bidding Window. For any Internet auctions, if a bid is placed on a Lot within ten (10) minutes of the scheduled close time, the auction for that Lot shall be extended for until the next ten (10) minutes after the scheduled close. Bidding shall be extended in ten (10) minute increments after each subsequent bid is then placed following the close of the auction. In the event the auction is extended, no contract shall be formed until the bidding is concluded.
(j) Buyer’s Premium. The total amount due from the Buyer for each Lot shall be the hammer price plus a commission equal to twenty-five percent (25%) of the hammer price (“Buyer’s Premium”), in addition to any applicable taxes. If Buyer purchased a Property that includes an NFT, the same Buyer’s Premium amount will be due in addition to any applicable taxes. For any Lots being offered for sale to benefit WCK, Acker will donate its Buyer’s Premium in full to WCK. Regarding any charitable auctions including the auctions to benefit WCK, Bidders are advised to consult with their own tax advisors to determine the application of the tax law to their own specific circumstances and whether a charitable contribution deduction is available for any purchase. Please note that all WCK Lots are donated in full by the consignors. Bidders are advised to discuss their particular tax circumstances with their independent tax advisor, including residency eligibility under applicable laws, to determine if a charitable deduction for any purchase is available in any jurisdiction outside the United States.
(k) Discounted Buyer’s Premium. Acker provides discounts on the buyer’s premium to Bidders who transact with Acker or its affiliates over certain dollar thresholds. Acker’s discount policy shall be disclosed to any Bidder who requests it. Acker may deny such discounts for any particular auction on prior notice to the Bidders eligible for this discount before such auction takes place. Buyers will not be eligible for any Buyer’s Premium discounts with regard to WCK auctions.
(l) Post-Auction Sale of Property. Any post-auction sale of Property offered at auction and sold in a private treaty sale shall incorporate and be subject to these Conditions of Sale as if sold at the live auction.
5. AFTER AUCTION.
(a) Payment.
(i) When Due. Invoices reflecting the total amount due will be sent to each Buyer within two (2) days following the close of the auction (email to suffice). For any Internet, Buyer agrees to pay such invoice in full within forty-eight (48) hours following the close of the auction. For any Live auction, Buyer agrees to pay such invoice in full within thirty (30) days following the date of auction. Any amount of such invoice which remains unpaid more than forty-eight (48) hours after the date of the Internet auction, or more than thirty (30) days after the date of the Live auction, will be subject to a late fee equal to eighteen percent (18%) interest per annum, calculated on a daily basis, until such unpaid amount has been paid (“Late Fee”), notwithstanding any other provision of these Conditions of Sale. In the event Buyer has not paid in full within sixty (60) days following the close of the auction, Acker reserves the right to cancel the sale and reoffer such Lot(s), in addition to any of our rights upon buyer default.
(ii) Method of Payment. Payment of each invoice must be made in United States Dollars. Payments may be made by wire transfer, check and/or certain credit or debit cards (subject to the provisions herein). Any check returned unpaid will be subject to a $100 processing fee and will not be deemed paid for purposes of determining whether payment has been timely received. Visa, MasterCard, and American Express are accepted, without a convenience fee, for payments in the aggregate of up to
$15,000.00 per auction. To the extent permitted by law, the portion of any payment made by credit card in excess of $15,000.00 per auction shall be subject to a 3% convenience fee. By bidding at auction, Bidder authorizes Acker, without further notice to Bidder, to charge any credit or debit card used by Bidder to create an account with Acker and its affiliates or to make payment on any current or past invoice issued to Bidder by Acker or its affiliates, any balance of Bidder’s invoice that remains unpaid more than thirty (30) days after the auction (in addition to both a 3% convenience fee on any amount in excess of $15,000.00 and all other applicable fees and expenses, including late fees). All web auction buyers have the responsibility to have a valid credit card on file with Acker that will be tokenized through its payment processor. In the event Acker is unable to automatically charge buyer’s credit card within forty-eight (48) hours after the close of the auction for any reason, it is the obligation of the buyer to contact Acker to make alternative payment arrangements within this forty-eight (48) hour period. For successful buyers at web auctions, such buyers will be notified by email the night of the close of the auction (Eastern Time) of their purchase and be issued an invoice (typically a Sunday). The next day the buyer’s credit card will be automatically charged for their purchase to which Bidders consent by participating in the auction and agreeing to these Conditions of Sale. If for any reason a buyer’s credit card is declined, the buyer will be notified of the need for alternative payment by the Thursday of that week by 12a.m. Eastern Time. If we do not receive payment by that time, the Lot(s) will be deemed to be defaulted on, and we shall reoffer the Lot(s) in the next available web auction.
For successful buyers at live auctions, such buyers will have thirty-five (35) days following the close of the live auction to pay any applicable invoice(s). In the event Buyer does not settle its outstanding invoice(s) within thirty-five (35) days, Buyer authorizes Acker to charge Buyer’s credit card on file with Acker’s payment processor for the amount due (with no interest) for such invoice(s) on day forty (40) following the close of a live auction. In the event Buyer’s credit card declines this charge, Acker shall charge Buyer interest, effective thirty-five (35) days following the close of the live auction. Furthermore, the automatic credit card charge on day forty (40) shall be subject to the three percent (3%) convenience fee for transactions over fifteen thousand dollars ($15,000) described in the paragraph above.
b. Title and Taxes.
(i) New York Live Auctions (“New York Live Auctions”).
Except for the transfer of title and ownership of Property associated with an NFT, which will be subject to the provisions of Section 5(b)(iv) below, title to and ownership of purchased Property passes to Buyer in the State of New York, where New York live auctions (conducted by Acker Auction, Inc.) are fulfilled and where all Property will be located at the time of the auction and when released to Buyer.
For New York Live Auctions, Acker Auction is required to release purchased Property to Buyer in the State of New York, and, therefore, it is required to charge and collect New York sales tax, which will be applied to Buyer’s purchase. Property may be picked up in person from the designated location in New York. If purchased Property is released by Acker Auction to a licensed freight forwarder hired by Buyer for immediate shipment to a point outside of the United States, New York sales tax will not be applied to Buyer’s purchase.
Buyers at Acker Auction must make arrangements to ship or pick up their purchase of Property within no later than sixty (60) days from the date of auction. If Buyers do not make arrangements for the delivery or pick up of the purchased Property which is located at our Valley Cottage, New York warehouse within sixty (60) days from the auction in which Buyers purchased the Property from the date of the relevant auction Buyers will be charged a storage fee of twenty-five dollars per unit purchased (USD$25 per/unit). Furthermore, if Buyers have not arranged for the shipping or pick up of the purchased Property within six (6) months from the auction date, we will reoffer the Property at estimates to be set in our sole discretion.
(ii) Delaware Live Auctions (“Delaware Live Auctions”).
For Delaware Live Auctions (conducted by Acker Auction DE), all purchased Property is sold to the Buyer in Delaware and title passes to Buyer in Delaware. Acker is required to comply with all applicable Delaware state and local sales tax laws with respect to its live auction sales. As of the date of these Conditions of Sale, the State of Delaware does not impose sales tax on tangible personal property sold within the State.
Therefore, Acker is not required to charge or collect sales tax on Property sold within the State of Delaware pursuant to these conditions of sale.
Except for the transfer of title and possession to Property associated with an NFT, which will be subject to the provisions of Section 5(b)(iv) below, title to purchased Property shall not pass, nor shall possession of such Property be transferred to Buyer in the State of Delaware, until payment in full has been received by Acker in good and cleared funds.
(iii) Internet Auctions of Wine and Spirits.
Internet Auctions are conducted by either AMC or Acker Auction. Internet auctions of wine are conducted by AMC, under a license issued by the State of California. Internet auctions of spirits are conducted by Acker Auction, under a license issued by the State of New York. Except for the transfer of title and ownership to Property associated with an NFT, which will be subject to the provisions of Section 5(b)(iv) below, title to and ownership of purchased Property passes to the Buyer in either the State of Delaware, California, or New York, depending upon where the auction is fulfilled and where, unless other arrangements are made, all Property will be located when released to Buyer. Title to purchased Property shall not pass, nor shall possession of such Property be transferred to Buyer, until payment in full has been received by AMC (for wine auctions) or Acker Auction (for spirits auctions) in good and cleared funds. Neither AMC nor Acker Auction can ship or arrange shipping of purchased property to any destination within the United States outside of California or New York, where AMC and Acker Auction are licensed, respectively.
For internet auctions of wine (conducted under AMC’s California license, title to Property will pass in California (or Delaware if the Property is accepted by Buyer in Delaware). If the Property is released to Buyer in California, or Buyer requires delivery to California, California sales tax will be charged to Buyer. Anything contained herein to the contrary notwithstanding, spirits to be released within the United States will only be available for pick up in New York. For internet auctions of spirits (conducted under Acker Auction’s New York license), title to purchased Property will pass in New York.
Buyers purchasing from an internet spirits auctions must either pick-up purchased Property in person at Acker’s designated New York location or make their own arrangements for delivery elsewhere following delivery and acceptance in New York. New York sales tax will be charged.
(iv) Transferring Title via NFT.
If Buyer has purchased a Property that is associated with an NFT, then Acker (or the Seller) will not transfer title or ownership of the NFT to Buyer until payment in full has been received by Acker in good and cleared funds. Upon Acker’s receipt of payment in full in good and cleared funds, title, and ownership of the NFT will be transferred to Buyer. To receive the NFT, Buyer will use a digital wallet or wallet service provider registered in Buyer’s name or for which Buyer has title and that supports the NFT and understands and accepts that failure to ensure this may result in Buyer’s inability to access the NFT. If the bid was made on behalf of a company, then the digital wallet used to accept the NFT will be registered to the company, or the company will hold its title.
Buyer represents that the digital wallet or wallet service provider to which Acker (or the Seller) will transfer the NFT is not owned by or associated with (i) a citizen or resident of, or located in, a geographic area that is the target of sanctions or embargoes imposed by the European Union, the United Kingdom, the United Nations or the United States or (ii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of the Treasury’s Specially Designated Nationals or Blocked Persons List, or the U.S. Department of State’s Debarred Parties List, or similar lists promulgated by the government of the European Union, the United Kingdom, or the United Nations.
Risk of loss and responsibility for the NFT for which title is passed will transfer to Buyer when Acker (or the Seller) has sent the NFT to the digital wallet Buyer has specified.
Buyer is responsible for implementing reasonable measures for securing the other storage mechanism Buyer uses to receive and hold the NFT, including any requisite private key(s) or other credentials necessary to access such storage mechanism(s), and further specifically acknowledges that the risk of acquiring, transferring, creating, holding, or using the NFT or Buyer’s wallet rests entirely with the Buyer. If Buyer’s private key(s) or other access credentials are lost, Buyer may lose access to the NFT. Acker is not responsible for any such losses.
c. Collection and Delivery of Property.
TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER IS RESPONSIBLE FOR OBTAINING ADEQUATE INSURANCE COVERAGE FOR ALL PURCHASED
PROPERTY. Additionally, in no event will Acker be liable for special, consequential, or exemplary damages in relation to auction Property, and Acker’s liability will not exceed the purchase price of the Property.
Title to purchased Property shall not pass, nor shall possession of such Property be transferred to Buyer, until payment in full has been received by Acker in good and cleared funds. Upon Acker’s receipt of payment in full in good and cleared funds, purchased Property will be released to Buyer and available for pickup by Buyer at Acker’s designated location. Acker does not ship alcoholic beverages within the United States except to California or New York, pursuant to the terms in this Section. Any shipping or delivery arrangements required after the release of purchased property to Buyer shall be the sole responsibility of Buyer and at Buyer’s sole cost. Acker cannot release purchased Property to a carrier for delivery outside of the designated delivery state once released to Buyer, with the exception of release to a licensed freight forwarder for delivery to a destination outside the United States, or (for live and internet auctions only) or delivery to New York or California, subject to the exceptions below.
(i) For New York Live Auctions and Internet Auctions of spirits, Acker Auction is required to release purchased Property to Buyer in the State of New York, and, therefore, it is required to charge and collect New York sales tax, which will be applied to Buyer’s purchase. Property may be picked up in person from the designated location in New York.
(ii) For Delaware Live Auctions and Internet Auctions of Wines, after title passes if the Property has been picked up by the Buyer in person, or delivered to Acker Storage, any Buyer who arranges shipping, transportation, or delivery of purchased Property outside of the State of Delaware acknowledges that it is the owner and shipper of such Property. Neither Acker Auction, AMC, nor Acker Storage nor any of their affiliates make any representation as to the legal rights of any person or entity to ship, transport, deliver or import Property into any state, country, or jurisdiction. Buyer shall be solely and exclusively responsible for the shipping, transportation, and delivery of purchased Property, determining the legality of having such Property shipped, transported and/or delivered to the applicable destination, and compliance with any laws and the payment of all applicable taxes, duties, tariffs, and fees (including without limitation any interest or penalties) associated therewith.
Upon Acker’s receipt of payment in full in good and cleared funds, purchased Property will be released. Within five (5) days from the date title passes and the Property is made available, the Buyer must (i) arrange to pick up the Property from Acker in person; (ii) arrange for the delivery of the wine to a carrier with all necessary permits and licenses for shipment to a destination outside the United States of America; or (iii) (for internet auctions of wines only), arrange for delivery of the Property to the Buyer in California, where AMC is licensed, and Buyer must pay the applicable sales and/or excise taxes. If the Buyer does not select one of the three options above, the Buyer will be deemed to have consented to the transfer of the Property to Acker Storage and the Property will be transferred, in the Buyer’s name, to Acker Storage and Buyer will be responsible to pay any and all of Acker Storage’s fees and service charges and the Property will be subject to the terms of Acker Storage’s storage agreement that can be located at ackerstorage.com/StorageAgreement.pdf. Neither Acker Auction DE nor AMC can deliver Property except within the state which issued the license pursuant to which the auction was held or to the State of Delaware where the Property is stored. Arrangement to pick up the Property from Acker Storage can be made by calling (302) 525-8601. ACKER DOES NOT SHIP, TRANSPORT OR DELIVER ALCOHOLIC BEVERAGES AND SHALL HAVE NO OBLIGATION TO SHIP, TRANSPORT OR DELIVER PURCHASED PROPERTY TO BUYER. UNDER THE APPROPRIATE CIRCUMSTANCES, ACKER MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, AGREE TO DELIVER PROPERTY TO A CARRIER WITH THE NECESSARY LICENSES AND PERMITS TO SHIP ALCOHOLIC BEVERAGES OUTSIDE THE UNITED STATES, OR TO THE STATE THAT ISSUED THE LICENSE
PURSUANT TO WHICH THE AUCTION WAS CONDUCTED (DELAWARE OR CALIFORNIA). ACKER WILL COLLECT APPLICABLE SALE TAX FOR DELIVERIES INTO THE STATE WHICH ISSUED THE LICENSE PURSUANT TO WHICH THE AUCTION WAS CONDUCTED. (AT THIS TIME DELAWARE DOES NOT IMPOSE A SALES TAX). DELIVERY TO A COMMON CARRIER OR FREIGHT FORWARDER FOR SHIPMENT OUTSIDE THE UNITED STATES SHALL ONLY BE MADE ON THE CONDITION THE BUYER ASSUMES THE RESPONSIBILITY TO COMPLY WITH THE LAWS OF ALL GOVERNMENTAL ENTITIES WITH JURISDICTIONS OVER THE TRANSACTION AND TO PAY ANY AND ALL TAXES, FEES, EXPENSES, FINES, INTEREST, ATTORNEYS’ FEES, TARIFFS, LEVIES AND OTHER TAXES, COSTS AND EXPENSES RELATED TO THE TRANSACTION AND INDEMNIFIES AND HOLDS HARMLESS ACKER AND ITS AFFILIATES FROM ALL OF THE FOREGOING
INCLUDING ITS ATTORNEYS’ FEES AND COSTS. After the Property has been delivered to Buyer, in Acker’s Delaware facility, Buyer may make arrangements to leave the Property in storage in the state or to have the Property delivered elsewhere, Buyer assumes sole and exclusive responsibility for any required shipping, transportation or delivery arrangements of the purchased Property from the State of Delaware to Buyer’s desired destination and shall be solely responsible for any and all state and local sales or use taxes and/or other duties, taxes, tariffs or fees due or assessed by the jurisdiction and any interest or penalties related thereto. If purchased Property is not picked up by Buyer in-person within five (5) days after payment in full has been received by Acker Auction DE or AMC in good and cleared funds or if, prior to the expiration of such five
(5) day period Buyer notifies Acker in writing (email to suffice) that shipping, transportation or other delivery thereof outside the United States or to California or Delaware is required, Acker will automatically transfer custody of such Property to Acker Storage located at 1800 Ogletown Road, Suite E, Newark, DE 19711 (info@ackerstorage.com), which storage facility shall act as agent for Buyer in providing on-site storage of such Property until pick-up, shipping, transportation or delivery arrangements have been made outside the State of Delaware. The list of storage fees applicable can be found at ackerstorage.com/Storage Agreement.pdf.
Buyer agrees to pay all storage fees and other applicable charges imposed by Acker Storage and understands that Acker Storage has and may enforce a lien (including without limitation a lien under section 6 Del. C. 7-709(a)) on any Property transferred to it to be stored. Once physical custody of Property has been transferred to Acker Storage, Buyer may pick up such Property in person from Acker Storage, leave the Property in storage in Delaware or make independent shipping, transportation, or delivery arrangements for the Property to be delivered outside of the State of Delaware. To arrange in-person pick up from Acker Storage or for a full list of services offered by Acker Storage, please visit info@ackerstorage.com or call (302) 731-1483 during regular business hours. Please read Acker Storage’s terms and conditions carefully as they contain limitations as to Acker Storage’s liability for loss or damage to Property and as to the services Acker Storage is prepared to provide.
ONCE CUSTODY OF ANY PURCHASED PROPERTY HAS BEEN TRANSFERRED TO ACKER STORAGE AS PROVIDED ABOVE, ACKER AUCTION DE AND ITS AFFILIATES, AUCTIONEERS, AND SELLER (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) SHALL HAVE NO LIABILITY OF ANY KIND TO BUYER OR ANY OTHER PARTY IN CONNECTION WITH ANY SUBSEQUENT DETERIORATION, DAMAGE, OR OTHER LOSS OF ANY KIND IN CONNECTION THEREWITH, NO MATTER HOW OCCASIONED, WHETHER RELATING TO, ARISING FROM, OR IN CONNECTION WITH THE STORAGE OF SUCH PROPERTY AT ACKER STORAGE, THE SHIPMENT, TRANSPORTATION OR DELIVERY THEREOF (INCLUDING, WITHOUT LIMITATION, WHILE SUCH PROPERTY IS IN TRANSIT), OR OTHERWISE. NOTE THAT THE LIABILITY OF ACKER STORAGE MAY BE LIMITED BY LAW OR BY THE TERMS OF ITS STORAGE AGREEMENT.
After title passes and the Property has been picked up by the Buyer or delivered to Acker Storage, any Buyer who arranges shipping, transportation, or delivery of purchased Property outside of the State of Delaware acknowledges that it is the owner and shipper of such Property. Neither Acker Auction DE, AMC, nor Acker Storage nor any of their affiliates make any representation as to the legal rights of any person or entity to ship, transport, deliver or import Property into any state, country, or jurisdiction. Buyer shall be solely and exclusively responsible for the shipping, transportation, and delivery of purchased Property, determining the legality of having such Property shipped, transported and/or delivered to the applicable destination, and compliance with any laws and the payment of all applicable taxes, duties, tariffs, and fees (including without limitation any interest or penalties) associated therewith.
(d) Importation and Exportation.
(i) Importation and Delivery. Acker and its affiliates make no representation as to the legal rights of anyone to import or deliver any Property or other goods into any state or jurisdiction. Buyer acknowledges and agrees that it is solely responsible for the transport of the Property and for determining the legality and the tax/duty consequences of bringing the products to Buyer’s chosen destination.
(ii) Exportation. Property sold at auction may be subject to laws governing export from the United States, and Acker and its affiliates make no representation as to the legal rights of anyone to export such Property or other goods into any state or
jurisdiction. It shall be Buyer’s sole responsibility to determine, before bidding at auction, whether an export permit or license is required for Buyer’s purchase and, if required, to obtain any such required permit or license. The denial of, or delay in obtaining, any such permit or license shall neither justify the rescission of any sale nor any delay in making full payment for the purchase.
(e) Rescission.
(i) Claims by Buyer. Acker has the right but not the obligation to rescind a sale if any statement in Acker’s offering materials concerning a Lot is materially incorrect or such Lot is short or is in unsound condition (e.g., cooked, and spoiled), Buyer’s sole remedy shall be rescission of such sale in Acker’s sole and absolute discretion. If Buyer seeks rescission under this paragraph 5(e)(i), Buyer must so notify Acker in writing within ninety (90) days after the auction. Buyer may only make such a claim if the Property in question: (A) has the Acker auction sale date reference sticker(s) on the relevant bottle(s); (B) is in the same condition as when it was released by Acker to Buyer or when custody thereof was transferred to Acker Storage; and (C) has been delivered to and from Buyer and stored under appropriate conditions. TO THE FULLEST EXTENT PERMITTED BY LAW, BIDDER WAIVES ANY RIGHT TO MAKE ANY CLAIM OR BRING ANY LEGAL ACTION AGAINST ACKER AND ITS AFFILIATES, AUCTIONEERS, AND SELLER (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) RESULTING FROM ANY DETERMINATION MADE (OR FAILED TO BE MADE) BY ACKER UNDER THIS SUBSECTION. IN THE EVENT THAT BUYER FAILS TO PROVIDE TIMELY AND PROPER NOTICE TO ACKER UNDER THIS SUBSECTION, BUYER SHALL BE DEEMED TO HAVE WAIVED ANY RIGHT TO RESCISSION AS HEREIN PROVIDED.
Only the Buyer of record of the Property shall be entitled to make a claim of rescission under this subparagraph.
(ii) Buyer’s Sole Remedy. THE REFUND TO BUYER OF THE PURCHASE PRICE PAID FOR ANY PROPERTY SHALL BE BUYER’S SOLE REMEDY FOR ANY CLAIM OR MATTER RELATING THERETO.
(iii) Different Importers/Bottle Numbers. Although Acker may at times state in the catalogue or elsewhere if a Lot includes Property from different importers, failure to so state is not grounds for rescission of the sale of any Lot. Similarly, any incorrect statement or omission in the catalogue concerning bottle and/or sequence numbers of
Property from those producers that number their bottles is not grounds for rescission of the sale of any Lot.
(iv) Limited Guarantee. Notwithstanding anything to the contrary contained within these Conditions of Sale, Acker agrees to refund the purchase price to the Buyer of any Property purchased from Acker that is not of the vintage or from the producer as was stated in the catalogue or otherwise represented by Acker, including, but not limited to, Property that is counterfeit or has indicia which suggest that it is likely counterfeit, provided that: (A) the Buyer directly purchased the Property from Acker; (B) the Buyer returns such Property to Acker within ninety (90) days of the date of delivery of such Property to Buyer; and (C) that Buyer returns such Property in materially the same condition as it was delivered to Buyer. In the event Acker suspects the Property of a fraudulent activity or is a forgery, Acker may cancel any sale of such Property and hold such Property if it is in the possession of any Acker entity, including Acker Storage LLC. In the event the sale is cancelled after Buyer has made payment to Acker, Acker shall return such funds to Buyer.
(f) Default by Buyer. If Buyer fails to make payment in full in accordance with these Conditions of Sale within thirty (30) days following the auction, Acker Auction may, in its sole and absolute discretion:
(i) Cancel the sale, retaining any partial payment as liquidated damages;
(ii) Resell Property publicly or privately for Buyer’s account and at Buyer’s risk, with estimates and a reserve set at Acker’s sole and absolute discretion, and charge Buyer for any deficiency between the final bid in the resale and the final bid placed by Buyer, in addition to all costs and expenses of both the initial sale and the resale at Acker’s regular rates and the Buyer’s Premium due in connection with both sales;
(iii) Set off all sums due from Buyer against any amounts which Acker or its affiliates may owe to Buyer;
(iv) Exercise all the rights and remedies of a party holding a first priority perfected security interest in any Property or other property in the possession of Acker or its affiliates and which is owned or has been consigned by Buyer;
(v) Collect from Buyer the total amount due (including the Late Fee) plus any loss, cost or expense incurred by Acker in effecting such collection;
(vi) Collect from Buyer reasonable attorneys’ fees and expenses incurred by Acker in exercising any one or more of the rights or remedies set forth in this Agreement;
(vii) Prohibit Buyer from directly or indirectly purchasing from Acker and its affiliates and from participating in future auctions and other events held, hosted, or sponsored by Acker or its affiliates;
(viii) Exercise any right or remedy against Buyer available to Seller at law, equity or otherwise; or
(ix) Release the name and address of the Buyer to the Seller to enable Seller to commence legal proceedings against Buyer to recover all amounts due.
Acker may, in its sole and absolute discretion, exercise any one or more of the preceding remedies or any combination thereof.
If Buyer fails to pick up the Property in-person or fails to arrange for shipping, transportation or other delivery of the Property after payment in full has been received by Acker Auction, and after the Buyer has had five (5) business days after payment to pick up the Property itself or authorize delivery of the Property to Acker Storage and has not paid the storage fees for the Property at Acker Storage, Acker may, in its sole and absolute discretion, take any of the following actions in order to pay off all storage fees and other expenses incurred by Acker or Acker Storage:
(i) Cancel the sale;
(ii) Resell Property publicly or privately for Buyer’s account and at Buyer’s risk, with estimates and a reserve set at Acker’s absolute and sole discretion, and charge Buyer for any deficiency between the final bid in the resale and the final bid placed by Buyer, in addition to all costs and expenses of both the initial sale and the resale at Acker’s regular rates and the Buyer’s Premium due in connection with both sales;
(iii) Set off all sums due from Buyer against any amounts which Acker or its affiliates may owe to Buyer;
(iv) Exercise all the rights and remedies of a party holding a first priority perfected security interest in any Property or other property in the possession of Acker or its affiliates and which is owned or has been consigned by Buyer;
(v) Collect from Buyer the total amount due (including the Late Fee and/or interest) plus any loss, cost or expense incurred by Acker in effecting such collection;
(vi) Collect from Buyer reasonable attorneys’ fees and expenses incurred by Acker in exercising any one or more of the rights or remedies set forth in this Agreement; provided, however, that prior to taking any of the foregoing actions, Acker shall make three attempts using reasonable business effort to contact the Buyer in writing (which may include electronic transmission) as to Buyer’s failure to pick up or arrange for shipping, transportation, or other delivery of the Property. Acker shall hold any monies received in connection with such sale (after receiving payment for its storage and other costs) in accordance with all escheatment rules of the State of Delaware and as provided under the Acker Storage Agreement.
(g) Bidder’s Indemnity. By bidding at auction, each Bidder (including Buyer) agrees to indemnify, defend and hold Acker and its affiliates, auctioneer, and Seller (and each of their respective officers, directors, shareholders, members, employees, attorneys, representatives, agents and assigns) (each, an “Indemnitee”) harmless from and against any and all losses, damages, demands, claims, suits, judgments, costs, expenses, or other liability of any kind (including reasonable attorneys’ fees and expenses) relating to, arising from or in connection with: (i) Bidder’s actual, threatened or alleged breach of any representation, warranty, covenant or other provision contained within these Conditions of Sale; (ii) any act or omission on the part of Bidder (or Bidder’s agents, employees or representatives) adversely affecting Property; (iii) any inaccuracy of any document or instrument delivered by Bidder pursuant to or in connection with these Conditions of Sale; or (iv) Bidder’s violation of any applicable law, statute, rule or regulation. Bidder further agrees to advance each Indemnitee, upon demand, all costs, and expenses (including reasonable attorneys’ fees and expenses) as they are incurred by such Indemnitee in connection with any matter covered by the indemnification provisions of this Section 5(h). All of Bidder’s representations, warranties, and covenants herein, together with the indemnification provided for in this Section 5(g), shall survive completion of the transactions contemplated in these Conditions of Sale.
(h) Copyright. Acker reserves copyright in all images, illustrations and written material produced by or on behalf of Acker, including, without limitation, the content of the catalogue (collectively, “Material”), and in no event may Buyer or any third party use any Material without Acker’s prior written consent. In no event do Acker or its affiliates or Seller make any representation or warranty that Buyer will acquire any copyright, reproduction right or any other intellectual property right in any Property.
6. GOVERNING LAW AND FORUM SELECTION.
(a) These Conditions of Sale, including the respective rights and obligations of the parties hereunder and the conduct of the auction for live Delaware sales (including any online bidding in the auction, to which these Conditions of Sale apply), shall be governed by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. For New York Live Auctions and Internet Auctions for spirits in New York, the governing law shall be New York (including any online bidding or use of the mobile app). For Internet Auctions of wine (conducted by AMC), the governing law shall be California (including any online bidding or use of the mobile app). For the benefit of Acker, by bidding at auction (whether in person or through an agent, or through absentee, telephone, online, or mobile app bidding, or by other means), each Bidder (including Buyer) consents and agrees to the exclusive jurisdiction of the state courts of the State of Delaware located in New Castle County for Delaware Live Auctions, San Francisco, California in connection with Internet Auctions of wine or New York, New York in connection with New York Live Auctions and Internet Auctions of spirits in connection with any legal claim or action relating to, arising from, or in connection with these Conditions of Sale, including the respective rights and obligations of the parties hereunder and the conduct of the respective auction, and consents to personal jurisdiction in such respective courts. Each Bidder (including Buyer) waives, to the maximum extent permitted by law, any objection to the laying of venue in any such court and any claim that such court would be an inconvenient forum for any action covered by this Section 6. Each Bidder (including Buyer) agrees that Acker shall retain the right to bring legal proceedings in any court other than the state courts of the State of Delaware state courts located in New Castle County for Delaware or New York County, New York for New York, or San Francisco for California.
(b) To the extent required by applicable law, each Delaware auctioneer is licensed pursuant to 30 Del. C. 2301(a)(3). The New York auctions are conducted pursuant to
N.Y. Alcoholic Beverage Control Law §99-g. California auctions are conducted pursuant to California Business & Professions Code §23355.1; Commercial Code §§1812.600- 1812.610 and §2328.
7. JURY TRIAL WAIVER.
EACH BIDDER (INCLUDING BUYER), SELLER AND ACKER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING FROM, RELATING TO, OR CONCERNING THESE CONDITIONS, INCLUDING THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THE CONDUCT OF THE AUCTION.
EACH BIDDER (INCLUDING BUYER), SELLER AND ACKER AGREE THAT ANY LEGAL ACTION OR PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS EACH PARTY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ACTION. THIS CLASS ACTION WAIVER IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
8. LIMITATIONS OF LIABILITY.
ACKER AND ITS AFFILIATES, AUCTIONEERS, AND SELLERS (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) SHALL NOT BE LIABLE TO ANY BIDDER (INCLUDING BUYER) FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, DAMAGES FOR BUSINESS INTERRUPTION, USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; SERVER FAILURE OR DATA LOSS, CORRUPTED WALLET FILES, UNAUTHORIZED ACCESS TO APPLICATIONS, ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION INTERNET OR SYSTEMS OUTAGES, VIRUSES OR MALICIOUS CODES, HACKING OR OTHER ATTACKS) ARISING OUT OF OR IN ANY WAY RELATED TO THE SALE OR USE OF LOTS OR OTHERWISE RELATED TO THESE CONDITIONS OF SALE, INCLUDING THE CONDUCT OF THE AUCTION, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE), ARISING FROM, RELATING TO, OR CONCERNING THESE CONDITIONS OF SALE, INCLUDING THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER OR THE CONDUCT OF THE AUCTION, NO MATTER HOW OCCASIONED, AND EACH BIDDER (INCLUDING BUYER) EXPRESSLY WAIVES ANY RIGHT TO RECOVER ANY SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM LIABILITY OF ACKER AND ITS AFFILIATES, AUCTIONEERS, AND SELLERS (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) SHALL BE THE AMOUNT PAID BY BUYER FOR ANY PROPERTY THAT IS SUBJECT TO RETURN AS PERMITTED HEREUNDER. ACKER AND ITS AFFILIATES, AUCTIONEERS, AND SELLER (AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS AND ASSIGNS) SHALL HAVE NO OTHER LIABILITY OF ANY KIND OR NATURE UNDER THIS AGREEMENT, IN TORT OR OTHERWISE, WHETHER AT LAW OR IN EQUITY, WITH RESPECT TO THIS AGREEMENT OR THE OFFER, PURCHASE OR SALE OF ANY PROPERTY.
9. PERSONAL DATA AND INFORMATION.
Acker and its affiliates process each Bidder’s and Buyer’s personal data and/or information, as applicable, in accordance with its privacy policies available at: https://www.ackerwines.com/terms-conditions/#legal-privacy.
10. MISCELLANEOUS.
These Conditions of Sale constitute the entire understanding and agreement between the parties with respect to the subject matter contained herein and supersede and cancels all previous agreements and commitments, whether oral or written, in connection with the matters described herein. No waiver or modification of these Conditions of Sale shall be binding unless in writing and assented to by both Bidder and an authorized representative of Acker. No failure to insist upon compliance with any term or condition of these Conditions of Sale, whether by conduct or otherwise, shall be construed to be a waiver of such term or condition. In the event any one or more provisions of these Conditions of Sale is determined to be invalid or unenforceable in any respect, the validity and enforceability of all remaining provisions hereof shall not in any way be affected or impaired. In the event of a conflict between these Conditions of Sale and any other document, terms, or policy published by Acker (including, without limitation, the Website and Mobile App Terms of Use), these Conditions of Sale shall control. No provision of these Conditions of Sale shall be construed to create a partnership or other joint venture or enterprise between or among any of Acker, Bidder and Seller. None of the terms and conditions set forth in these Conditions of Sale may be assigned by Bidder without Acker’s express written consent. Each of Acker’s affiliates and auctioneers (and each of their and Sellers’ respective officers, directors, shareholders, members, employees, attorneys, representatives, agents, and assigns) shall be an express third-party beneficiary of the protections, rights and authority bestowed upon such entity or person by and throughout these Conditions of Sale.
These Conditions of Sale shall be binding upon Bidder’s heirs, executors, beneficiaries, successors, and assigns. Section headings herein are for purposes of convenient reference only and will not affect the meaning or interpretation of any provision of these Conditions of Sale. These Conditions of Sale shall be construed as if jointly drafted and without regard to any presumption or other rule requiring construction against any party on account of its participation in the drafting hereof. Bidder acknowledges that it has read these Conditions of Sale in their entirety, understands that these Conditions of Sale constitute an important legal document, has had the opportunity to consult with legal counsel of its own choosing prior to bidding at auction, agrees to be bound by all of the terms and conditions set forth herein, and that Acker has not provided any legal advice to Bidder in connection with these Conditions of Sale or the subject matter thereof.
11. LICENSE NUMBER.
To the extent required by applicable law, each auctioneer is licensed pursuant to 30 Del. C. 2301(a)(3). The license number assigned to Acker by the Delaware Alcoholic Beverage Control Commissioner is 15350. For New York auctions, Acker Auction, Inc.’s New York Auction License No. is 1413658. For California auctions, AMC’s license number is 604246.
亚洲拍卖销售条款
Asia Auction Conditions of Sale
Revised March 27, 2023
1. BUYER’S AGREEMENT.
By bidding at auction, the bidder at auction (“Bidder”) agrees that this Buyer’s Conditions of Sale (“Conditions of Sale”), together with the Collection and Shipment of Wines, Bottle Description and Absentee Bids, all published by Acker, Merrall & Condit (Asia) Limited (“AMC”), and all incorporated into the Conditions of Sale, constitute Bidder’s entire agreement (the “Agreement”) with AMC and the seller (“Seller”) with respect to the property (“Property”) listed in this catalogue. AMC may amend the Agreement from time to time and at any time before, during and after any auction through posted notices, addenda, or errata or through oral salesroom announcements during the sale. By bidding at auction, Bidder agrees to be bound by all terms and conditions of the Agreement.
2. AMC AS AGENT.
Except as otherwise stated in the Agreement, AMC acts strictly as agent for the Seller. The Agreement for the sale of all Property is therefore between Seller and the highest Bidder accepted by the auctioneer (“Buyer”). Property is divided into separate groupings as solely determined by AMC and each such grouping (a “Lot”) is subject to a separate bid at auction.
3. BEFORE AUCTION.
a) Inspection. Prior to auction, Bidder is expressly advised to physically inspect any Property in which Bidder is interested in bidding and to rely on such inspection, as opposed to descriptions in the catalogue or elsewhere. While AMC attempts to describe all Property with accuracy, AMC shall in no event be liable for any oral or written description of Property, or for any errors or omissions relating thereto. ALL PROPERTY IS SOLD “AS IS.”
AMC may seek views of outside experts either before or after the sale on certain Property, which may be marked to indicate that the expert has inspected Property. The auction venue has not selected or inspected any Property to be sold at this auction and disclaims any and all responsibility therefor.
b) No Guarantee. In no event whatsoever do Seller or AMC or any of their
respective officers, employees or agents make any oral or written express of implied representations, warranties or guarantees as to the merchantability, fitness for a particular use, the correctness of any catalogue description or other description as to the origin, physical condition, quality, rarity, authenticity, attribution, value, estimated value, importance, provenance, exhibition history, potability, historical relevance or bibliographic references concerning any Property.
c) Bidder Registration. To bid at this auction, Bidder must complete and sign a registration form and provide information and proof of age. AMC may also require Bidder to produce bank or other financial references. AMC retains the absolute right to refuse any prospective Bidder admission to, or participation in, any auction.
d) Importation. Buyer is expressly advised to read the Collection and Shipment of Wines form, which is part of this Agreement. Various jurisdictions prohibit the importation, or limit the quantity, of alcoholic beverages that may be brought or shipped into such jurisdiction. In addition, various jurisdictions may require Buyer, Seller, or shipper to possess certain licenses or permits. Moreover, local laws may prohibit the importation and/ or the resale of wine. It shall be Buyer’s sole responsibility to determine if such prohibitions, restrictions, or limitations are applicable to Buyer and to
determine before bidding at auction whether, and in what manner, alcoholic beverages can legally be brought into any jurisdiction. The prohibition or denial of, or delay in obtaining, any such permit or license shall neither justify the rescission of any sale nor any delay in making full payment for the purchase.
AMC makes no representation or warranty as to the legal right of any party to ship or import alcoholic beverages to, from, or into any jurisdiction. Further, AMC assumes no obligation and bears no responsibility whatsoever for applying for or obtaining any such permits or licenses.
e) Exportation. Property sold at auction may be subject to laws governing exportation from Hong Kong. It shall be Buyer’s sole responsibility to determine – before bidding at auction – whether an export permit or license is required for Buyer’s purchase and to obtain any such required permit or license. The denial of, or delay in obtaining, any such permit or license shall neither justify the rescission of any sale nor any delay in making full payment for the purchase.
AMC makes no representation or warranty as to the legal right of any party to ship or export alcoholic beverages to or from any jurisdiction. Further, AMC assumes no obligation and bears no responsibility whatsoever for applying for or obtaining any such permits or licenses.
f) Absentee Bidding. Bidders are expressly advised to read the Absentee Bids form, which is part of this Agreement. As a courtesy to Bidders neither present at the auction in person nor through an agent or by telephone, AMC will enter written absentee bids delivered to AMC prior to the auction, which may be over the Internet. Absentee bids must be placed in the currency of the place of sale. If AMC receives identical written bids for a particular Lot and these bids are the highest amount for that Lot at auction, such Lot will be sold to the absentee bid first received. The entry of written bids is a free
service offered strictly as an accommodation to Bidders and is undertaken by AMC subject to its obligations at the time of auction. Accordingly, AMC is in no event liable for any errors or omissions in executing such written bids or for any failure to execute any such bids.
g) Telephone Bidding. Prior to the day of auction, Bidders may make arrangements with AMC to bid at auction by telephone. Telephone bidding is offered as a courtesy to Bidders who cannot be present at the auction in person, by agent, or by written absentee bid. The entry of telephone bids is a free service offered strictly as an accommodation to Bidders and is undertaken by AMC subject to its obligations at the time of auction. Accordingly, AMC is in no event liable for any errors or omissions in executing such telephone bids or for any failure to execute any such bids.
4. AT AUCTION.
a) Catalogues. Bidders are expressly advised to read the Bottle Description form, which is part of this Agreement. While AMC has attempted to describe each Lot in this catalogue accurately, in no event shall AMC be liable for any description or error or omission in such description. AMC retains the absolute right to amend at any time prior to and during the auction and in any manner any description of any Lot. Classifications in the text are for identification purposes only and are based on standard sources. Each statement
contained in this catalogue and each other statement, whether oral or written, and whether made in an advertisement, bill of sale, addendum, notice, announcement or other written or oral communication, is a statement of opinion ONLY and shall not be relied upon by any Bidder. Bidders must make appropriate allowances for natural variations of ullages, conditions of cases, labels, corks, and wine. In no event shall AMC accept a return, offer credit for, or adjust the price of any Property after delivery except under the terms stated in Section 5 (d) below. Images appearing in this catalogue or elsewhere are for illustrative and informational purposes only and may not reveal defects or imperfections in any Lot. Bidders are urged not to rely on catalogue images in determining whether to bid on Property and are strongly encouraged both to review the relevant AMC auction catalogue entry and to personally inspect any Property prior to placing bids.
b) Reserve Price. Each Lot is sold subject to a reserve price, which is the minimum price below which the Lot will not be sold. While AMC has the right to raise or lower the reserve price at any time prior to the time the Lot is opened for bidding, under no circumstance shall the reserve price for a Lot exceed the low estimate for that Lot as printed in the catalogue or as amended by oral or posted notices.
c) Estimates. Each Lot in the catalogue is accompanied by a low and high estimate of the selling price, excluding the Buyer’s premium and any taxes. Where possible, estimates are based on past sales of comparable property, and, while they are intended as a general guide for prospective Bidders, in no event do they constitute either a representation or a prediction of an actual selling price and should not be relied upon as such. AMC determines estimates in advance of the sale and reserves the right to revise estimates to reflect current market conditions.
d) Bidding. Warranties. By bidding at auction, whether in person, through absentee bidding, telephone bidding, Internet bidding or otherwise, Bidders represent and warrant that (i) they are at least twenty-one (21) years of age,
(ii) they have the legal authority, right, and capacity to buy, receive, possess, and otherwise deal in any Lot purchased, and (iii) any bids made by Bidder or on Bidder’s behalf are not pursuant to any anti-competitive agreement and are otherwise in compliance with all applicable laws.
Bids per Lot. Unless otherwise announced by the auctioneer, all bids are per Lot in consecutive numerical order as they appear in this catalogue.
Bidding up to but not at the Reserve Price. Subject to the auctioneer’s discretion, bids shall be entered in the order in which they are received. The auctioneer may open bidding on any Lot by placing a bid on behalf of the Seller. The auctioneer may further bid on behalf of the Seller up to but not at or exceeding the amount of the reserve price by placing successive or consecutive bids for the Lot, or by placing bids in response to other Bidders.
Bidding at and Beyond the Reserve Price. Once bidding has reached the Lot’s reserve price, the auctioneer will not bid on behalf of the Seller and will accept bids only from parties other than the Seller or the Seller’s agent.
No Sellers Bidding. Subject to as otherwise provided in this Section 4(d), Sellers have agreed not to enter a bid or to cause a bid to be entered on their behalf on any Lot of which they are the owner. Notwithstanding the foregoing, any Seller, whether by himself or via an agent, shall have a right to bid on any Lot of which such Seller is the owner upon AMC granting its permission of such right.
Bidding by AMC. AMC reserves the right to bid for its own account or for the account of its associates on any Lot at any auction, subject to the same terms and conditions applicable to all other Bidders and Buyers.
Bidding Not Reaching the Reserve Price. If bidding on a Lot does not reach the reserve price, the auctioneer may remove the Lot from sale. At the time of such removal and before bidding on another Lot begins, the auctioneer shall announce that the removed Lot has been “passed.”
Bidding by employees of AMC and its associates. AMC reserves the right to permit employees of AMC and its associates (“Acker Employees”), in the sole and absolute discretion of AMC, to bid on their own account on any Lot at any auction, provided that (i) such employees may only place bids by absentee bid submitted prior to the auction, (ii) if such employees do not have certain confidential information on the Lot they are bidding, and (iii) they comply with the applicable employee bidding procedures. Acker Employees may be permitted to bid at a discounted Buyer’s premium. Subject to terms and conditions imposed by AMC as it deems reasonable, AMC’s discount policy may be disclosed to any Bidder upon written request. AMC may deny discounts for any particular auction upon giving prior notice to Acker Employees before such auction takes place.
Discounted Buyer’s Premium. AMC reserves the right to provide
discounts on Buyer’s premium to Bidders who transact with AMC and its associates over a certain amount. Subject to terms and conditions imposed by AMC as it deems reasonable, AMC’s discount policy may be disclosed to any Bidder upon written request. AMC may deny discounts for any particular auction upon giving prior notice to such Bidders before such auction takes place. Employees and Buyers will not be eligible for any Buyer’s Premium discounts for charity auctions.
Hammer Price. The highest bidder accepted by the auctioneer will be Buyer and the striking of the auctioneer’s hammer marks the acceptance of the final bid as the “hammer price” and the creation of a contract for sale between Seller and Buyer.
Passage of Title. Buyer hereby acknowledges and agrees that title of any Lot shifts to Buyer upon the issuance of the final invoice provided to Buyer by AMC (“Final Invoice”). Buyer hereby names and authorizes AMC as Buyer’s exclusive agent to store or take any other action authorized by this Agreement until Buyer remits payment for the Final Invoice in full to AMC. Buyer acknowledges and waives the right to take possession of any purchased Lot or Lots until Buyer remits payment in full of the Final Invoice to AMC.
No Liability. In no event shall AMC be liable for any errors in entering any bids or for failure to enter any bids. After passage of title, AMC shall bear no liability for risk of loss or damage to Lot(s). Buyer must obtain their own adequate insurance coverage for the Lot(s).
e) Parcel Lots. In the event the catalogue lists a sequence of Lots carrying the same estimates and consisting of the same type of wine, quantity, and bottle size (a “Parcel”), Buyer of the first Lot in such Parcel may, in the discretion of the auctioneer, be granted the option to buy any or all additional Lots in the Parcel for the same hammer price if there is no higher absentee bid on any subsequent Lot within the Parcel. If the option is not exercised on all such Lots, the auctioneer will open bidding on the next unsold Lot and may elect to offer Buyer of that Lot the option to take any or all of the remaining Lots in the Parcel. Bidding shall continue in the same manner until all Lots in the Parcel have been offered and declared sold or unsold by the auctioneer.
f) Auctioneer’s Discretion. AMC and/or auctioneer has the sole and absolute discretion to: (i) withdraw any Lot; (ii) divide any Lot; (iii) combine any two or more Lots; (iv) refuse any bid; (v) advance the bidding, including changing the increments, in such a manner as AMC and/or auctioneer may set fit; and (vi) in the event of error or dispute, in order to determine the successful bidder, to continue the bidding, cancel the sale, or reoffer and resell the disputed Lot. Wherever AMC and/or auctioneer exercises its discretion, its decision is final, binding, and conclusive in all
respects.
g) Property in which AMC has an Economic Interest. Lots in which AMC or any of its associates has an economic interest will be so designated by a * symbol in the header of the first page here such Lots appear, or next to the first lot for the applicable consignment where there is no header.
h) Buyer’s Premium. A Buyer’s premium of twenty-five percent (25%) shall be added to the hammer price. For the Food and Beverage Industry charity auction, AMC shall donate 5% of the Buyer’s Premium to the charitable organization(s) of its choosing.
i) Meaning of associates. “Associate” shall mean, with respect to any specific entity, any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or under common control with, the specific entity. For the purpose of this definition, the term “control,” when used in respect of any entity, shall mean the power and authority to manage such entity, whatever directly or indirectly, through the holding of shares with a voting right, through a contract or otherwise.
5. AFTER AUCTION.
a) Payment. When Due. Final invoices are rendered reflecting the final purchase price within seven (7) days following each auction. Buyer may pay each invoice upon receipt, but in any event must pay each invoice within thirty (30) days following the date of auction. All payments received more than thirty-five (35) days after the date of the date of the auction will be subject to an interest charge of 1.5% per month until the invoice is paid in full, notwithstanding any other provision of these Conditions of Sale.
Method of Payment – Cheque, Wire Transfer, and Credit Cards. Payment may be made by cheque or wire transfer. All cheques returned unpaid will be subject to a HKD 800 processing fee. Visa, MasterCard, and American Express are accepted for purchases of HKD 150,000 and less. No other credit cards will be accepted. Please contact us at info@ackerasia.com for wire instructions, or if you have any questions.
b) Release of Purchased Property. Once payment in full of the final purchase price has been received by AMC, and subject to Buyer’s compliance with the other terms and conditions of the Agreement, the purchased Lots will be released to Buyer. Any Lot not collected by Buyer within thirty (30) days following the auction will be removed to storage by AMC and the costs of packaging, handling, removing, insuring, and storing that are incurred by AMC in connection therewith shall be assessed as set forth in the Collection and Shipment of Wines form. Any such Lot will be released from storage only after payment is made in full of the aforesaid costs at the applicable rates then in effect.
c) Packing and Shipping. Buyer is expressly advised to read the Collection and Shipment of Wines form.
By AMC. Subject to the terms of the Collection and Shipment of Wines form, all packaging, handling, transporting, insuring, and delivering of purchased Property are the sole responsibility of Buyer and occur at the sole risk and expense of Buyer, whether or not Buyer engages AMC for such purpose. Buyer shall pay AMC in advance for all expenses incurred by AMC in engaging such services unless AMC chooses in its sole discretion to bill Buyer after such services are performed.
By Third Parties. AMC, on behalf of Buyer, will follow Buyer’s instructions in arranging the delivery of the purchased Property by a carrier selected by Buyer; provided, however, that AMC shall not be responsible for any acts or omissions of any carrier or shipper, including, without limitation, any packing, handling, transporting, insuring, or delivering of any Property and any storage or shipment of Property under inappropriate conditions.
If Buyer wishes for the purchased Property to be shipped to the United States, Buyer may make third-party arrangements for such shipping at the sole risk and expense of Buyer as described above. If Buyer wishes for assistance in arranging such shipping, such arrangements may be coordinated through a third party by Acker Storage, LLC, a Delaware, United States, limited liability company (“Acker Storage”) provided Buyer becomes a client of Acker Storage, to which Buyer shall be subject to all fees and terms as per the storage service agreement to which Buyer will be bound located at https://www.ackerstorage.com/static-content/StorageAgreement.pdf. The same terms shall apply as stated above in this section regarding Buyer’s responsibility after passage of title.
d) Rescission. AMC’s Limited Guarantee. If, within ninety (90) days after the auction, Buyer of a Lot notifies AMC in writing that such Lot is short or is in unsound condition (e.g., cooked and spoiled), or that any statement made in AMC’s offering materials concerning such Lot is materially incorrect, AMC shall be the sole arbiter, by way of inspection or by such other reasonable means as it sees fit, of the validity of such claim between Buyer and Seller and shall make a final decision binding on Buyer and Seller based on its determination of the validity of such claim. No claim made by Buyer under the preceding sentence shall be addressed by AMC unless all Property in question (i) has the AMC auction sale date reference sticker on its bottle, (ii) is in the same condition in which it was delivered to Buyer, and (iii) has been shipped to and from Buyer and stored under appropriate conditions. Having decided any such claim, AMC may, in good faith, direct that the sale either stand or be rescinded and that the final purchase price be refunded either in whole or in part. By bidding at auction, Bidder agrees for itself and its successors and assigns that (i) it hereby waives any right to make any claim or bring any legal action against AMC resulting from any determination made or failed to be made by AMC under this Paragraph 5 (d), and (ii) in the event that Buyer fails to provide timely and proper notice to AMC under this provision, Buyer shall be deemed to have waived the right to rescission as herein provided. In the event AMC suspects the Property of a fraudulent activity or is a forgery, AMC may cancel any sale of such Property and hold such Property if it is in the possession of any Acker entity, including Acker Storage LLC. In the event the sale is cancelled after Buyer has made payment to Acker, Acker shall return such funds to Buyer.
Rescission available solely to Buyer. The remedy of rescission, if AMC elects to rescind under the circumstances, is available solely to Buyer of Property, who must have remained the sole owner thereof with no transfer of any interest therein to any third party.
Buyer’s Sole Remedy. The refund to Buyer of the purchase price for Property shall be Buyer’s sole remedy for any matter relating to the condition of Property, and such remedy shall be available only if Buyer received such Property from AMC. In no event shall AMC be liable for any indirect, special, punitive, consequential, loss of profit or other damages, including, without limitation, attorneys’ fees and expenses, no matter how arising, and AMC’s maximum liability shall be the amount paid by Buyer (exclusive of all taxes) for any Property that is subject to return as permitted hereby. Seller shall have no other liability of any nature or kind under this Agreement, in tort or otherwise, whether at law or in equity, with respect to this Agreement or the offer, purchase and sale of any wine comprising the purchase and sale of Property.
Different Importers. Although AMC makes an effort to state in the catalogue if a Lot includes wines from different importers, failure to so state is not grounds for rescission of the sale of any Lot. Similarly, any incorrect statement or omission in the catalogue concerning bottles and/ or sequence numbers of Property from those producers that number their bottles comprising Property, is not grounds for rescission of the sale of any Lot.
e) Default by Buyer. If Buyer fails to make payment in accordance with the Conditions of Sale within ninety (90) days following the auction, AMC may, in its absolute discretion:
i. Cancel the sale;
ii. Resell Property publicly or privately for Buyer’s account and at Buyer’s risk and charge Buyer for any deficiency between the final bid in the resale and the final bid placed by Buyer, in addition to all costs and expenses of both the initial sale and the resale at AMC’s regular rates and the Buyer’s premium due in connection with the initial sale;
iii. Set off all sums due from Buyer against any amounts which AMC may owe to Buyer;
iv. Exercise all the rights and remedies of a party holding a first priority perfected security interest in any Property or other property in AMC’s possession owned or consigned by Buyer;
v. Collect from Buyer the total amount due plus any loss, cost or expense incurred by AMC in effecting such collection;
vi. Charge Buyer interest at the rate of eighteen percent (18%) per annum on all sums due from Buyer;
vii. Collect from Buyer the fees, expenses, and disbursements of legal counsel to AMC incurred in exercising any one or more of the rights or remedies set forth in this Agreement;
viii. Not permit Buyer directly or indirectly to participate in future AMC auctions;
ix. Exercise any right or remedy against Buyer available to Seller; and
x. Assert any other rights or remedies available at law or in equity.
AMC may, in its discretion, exercise any one or more of the preceding remedies or any combination thereof.
f) Buyer’s Indemnity. Buyer shall indemnify, defend, and hold AMC and its officers, directors, employees, and agents, harmless from any loss, expense (including attorneys’ fees and expenses, which shall be paid in advance), liability, costs, or damages incurred by reason of (i) any breach or alleged breach of any warranty herein or breach of this Agreement by Buyer, (ii) any inaccuracy of any certificate, document, or instrument
delivered by Buyer pursuant to or in connection with this Agreement, and
(iii) any act or omission of Buyer, its agents, or employees, adversely affecting Property. Buyer’s representations, warranties, and indemnification survive completion of the transactions contemplated in this Agreement.
g) Copyright. AMC reserves copyright in all images, illustrations and written material produced by or on behalf of AMC, including, without limitation, the content of this catalogue (collectively, “Material”), and in no event may Buyer or any third-party use any of Material without AMC’s prior written consent. In no event do either AMC or Seller make any representation or warranty that Buyer will acquire any copyright, reproduction right or any other intellectual property right in any Property.
6. GENERAL TERMS.
a) Headings. The section headings in this Conditions of Sale are for convenience of reference only and shall not be considered as substantive parts of this Agreement.
b) Entire Agreement. This Agreement (including all instruments incorporated by reference) constitutes the entire agreement between AMC and Buyer pertaining to the subject matter hereof and supersedes any and all prior discussions and agreements between them. This Agreement may not be amended, nor shall any waiver, change, modification, consent, or discharge of any part of this Agreement be granted, except by an instrument in writing executed by both AMC and Buyer. Any failure by AMC to enforce any provision of this Agreement shall not operate as a waiver of such provision.
d) No Joint Venture. No provision of this Agreement shall be construed to create any agency, partnership, or other joint enterprise between AMC and Buyer.
e) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of Hong Kong without reference to principles governing conflicts of law.
f) Dispute Resolution. Any and all disputes or controversies arising under or relating to the interpretation or application of the terms of this Agreement or any extension or modification thereof, or the asserted breach thereof by any party, shall be resolved through final and binding arbitration
in Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the notice of arbitration is submitted in accordance with such rules. There shall be one arbitrator, and the arbitration proceedings shall be conducted in English. Any arbitrator so appointed shall be empowered to, in addition to awarding actual money damages (but not punitive damages) against the party found to have violated this Agreement, grant in his award, injunctive or other types of equitable relief, to enforce specific performance of this Agreement, and to prevent
any continuing or further violation of its terms. Judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction there. The cost of such arbitration shall be borne equally by the parties, except that each party shall be responsible for its own attorneys’ fees.
1. LANGUAGE.
In case of any conflict between the English and Chinese versions of this document, the English version shall prevail.
U.K. Terms and Conditions of Business
Revised April 28, 2022
These Terms and Conditions apply to everything supplied (wines, spirits, goods, or services) by Acker U.K. Ltd. to our customers. They are available on request and on our website (uk.ackerwines.com). By placing an order, you confirm you are at least 18 years of age. In paying an invoice, you accept Acker U.K.’s Terms and Conditions of Business.
1. PRICES.
All prices are in Sterling and are quoted per case unless otherwise stated. Prices may be quoted either In Bond, Duty Paid excluding VAT or Duty Paid including VAT, and this will be made clear on individual offers. Acker U.K. reserves the right to alter prices at any time. If we mistakenly under-price a wine, spirit, or a service, we will not be liable to provide that wine, spirit, or service at the stated price. Prices are subject to currency and market variations, and to changes in duty and VAT, and may be changed accordingly.
2. EN PRIMEUR PURCHASES.
En Primeur wines are quoted In Bond, and therefore exclude duty and VAT. Payment terms remain as detailed below, while delivery will be made following shipment and payment of duty, VAT and any other charges that may apply.
3. OFFERS.
All wines and spirits are offered subject to availability, and all offers are made E & O E. Acker U.K. reserves the right to defer the date of delivery, or to cancel all or part of an order, when obliged to do so by circumstances beyond the Company’s reasonable control.
4. PAYMENT.
All invoices are for settlement upon receipt of the invoice unless stated otherwise. Payment may be made by bank transfer or by cheque. The Company reserves the right to charge monthly interest at 2% above the base rate of HSBC Bank plc on any overdue accounts.
5. CHARGES.
Where charges are incurred on In Bond purchases (bottling charges for halves, magnums and/or double magnums; In Bond transfer fees and/or delivery as applicable, duty and VAT at the prevailing rate on clearance from Bond), these charges must be settled prior to transfer or delivery of the goods.
6. DELIVERY.
Deliveries are charged at cost to UK mainland addresses. Next day deliveries may require a surcharge. While we use best efforts to deliver according to dates and times agreed, we will not be held liable for failure to do so due to circumstances beyond our reasonable control including any delay caused by a third-party shipper which is the normal way in which deliveries are made.
7. BREAKAGES & SHORT DELIVERIES.
Any breakages or short deliveries must be noted on the delivery receipt at the time of delivery, and you must notify us immediately. We will not accept responsibility for any breakage or shortage of which we have not been notified within 14 days of receipt. Breakages and packaging must be retained for inspection by the carrier.
8. QUALITY AND CONDITION.
All wines and spirits are offered in good faith and, where applicable, are sold “as described” at the time of the offer. Any issues must be reported to us in writing within 14 days of receipt. Acker U.K. will accept no liability for any condition related issues reported after 14 days of recorded proof of delivery. The maximum liability accepted by Acker U.K. is for the invoiced value of the individual bottle or case which is proven not to be “as described.” Acker U.K. is not, however, responsible for wines/spirits (to the extent applicable) which prove to be corked, faulty or out of condition, or which have been stored for too long and/or inappropriately. Acker U.K. is not liable for any losses which may arise from a corked, faulty, or out of condition wine or spirit.
9. TITLE.
All wines/spirits remain the property of Acker U.K. or its seller until payment has been received in full. Title in the goods remains with Acker U.K. or its seller until any and all debts due to Acker U.K. are paid in full.
10. EXPORT.
Wines and spirits purchased for export will be made available for collection by, or may be delivered to, a shipping agent. You are free to make independent arrangements with your shipping agent at your own risk and liability. The Company’s liability will cease from the moment of collection, or at accepted delivery whichever comes first. At our discretion, the Company may defray the shipping cost, but in so doing, will not incur any liability for the goods while in transit.
11. LAW.
These Terms and Conditions are subject to the laws of England and Wales. They do not affect your statutory rights as a consumer. Any dispute must be resolved in the English courts. These Terms and Conditions may be amended at any time in our sole discretion.
12. PRIVACY AND DATA PROTECTION.
Acker U.K. has a Privacy Policy, as below. The Company complies, and expects its customers to comply, with the obligations imposed under the UK’s Data Protection Act, including the General Data Protection Regulation (“GDPR”). The Company relies on its customers to provide details of any changes to their personal data held by the Company (mainly name, address, contact telephone number(s) and delivery instructions). The Company is registered with the Information Commissioner’s Office (Data Protection Registration reference: ZB325778).
Important Notice Regarding Shipping
Acker Merrall & Condit (“AMC”) is not permitted to, and does not, ship retail purchases of wine or alcoholic beverages outside of New York or California. AMC shall have no obligation to ship or otherwise deliver purchases to you outside of New York and California. All purchases are subject to AMC’s Retail Conditions of Sale if purchased at retail or our Auction Conditions of Sale if at purchased at auction, including all terms therein regarding the collection and delivery of property as well as applicable taxes. You or your designated agent may pick up purchased goods at AMC’s facilities in New York. As set forth in the applicable Terms and Conditions, If you cannot pick up the goods and require alternate arrangements for storage and/or shipping outside of New York or California, AMC will transfer your purchase to World Wide Cargo Services, Inc, to be stored until arrangements to pick up the property are made or shipping is arranged through World Wide Cargo Services, Inc, unless you direct us to deliver to another storage provider or shipping agent within New York State. AMC does not arrange shipping outside of New York or California. If you wish to provide shipping instructions here, such information will be transferred to World Wide Cargo Services, Inc for use in arranging such shipping. Prices listed here are those currently charged by World Wide Cargo Services, Inc, and any charges for shipping or storage shall be billed independently by World Wide Cargo Services, Inc. PLEASE NOTE, World Wide Cargo Services, Inc is an independent company and AMC is not responsible for its actions or its failures to act. Should you opt to have your goods placed in storage, once the goods are delivered to the World Wide Cargo Services, Inc or another designated storage company, they belong to you and you accept any subsequent risk of loss or damage.
Title to all purchases shall pass to you in New York. You agree that AMC will collect and you will pay the applicable New York state and local sales tax, unless shipping is requested to California, where AMC is permitted to ship alcoholic beverages. In such case AMC will arrange shipping and you agree that AMC will charge and you will pay the applicable California state and local sales tax. If after delivery of the goods to you, you request that your agent transfer the goods to you in another state, you understand and agree to be responsible to comply with the laws of the state into which you transfer the goods. You should check that states rules, regulations and limitations and you must pay any applicable sales, use or excise taxes. PLEASE NOTE THERE ARE STATES THAT FORBID THE TRANSFER OF WINE OR SPIRITS INTO THE STATE EXCEPT UNDER VERY LIMITED CIRCUMSTANCES. MAKE CERTAIN YOU KNOW THE LAW AND COMPLY.
ACKER UK
简体中文
English
繁體中文
Français
日本語
Português
Español
