Investment Terms

Investment Terms & Conditions

TERMS AND INTERPRETATION
1. These are the terms of supply (“Terms”) under which Cult Wines Canada Limited (“CULT WINES”) supplies Assets and Services to Customers (in each case as defined below) through www.wineinvestment.com/ca/ (“website”). CULT WINES is a company incorporated in Ontario, Canada, with its head office at 110 Cumberland Street, Suite 333, Toronto, Ontario.
2. The supply of Assets and Services by CULT WINES is in all cases subject to these Terms and the Customer’s Account Opening Request accepted by CULT WINES (collectively, the “Contract”). No person acting or purporting to act on behalf of CULT WINES has any authority to waive, add to or vary the Contract, unless the waiver, addition or variation is in writing and signed by a duly authorised representative of CULT WINES. Any terms appearing on any purchase orders, invoices and similar documents that are in conflict with the Contract will not apply.
3. The Assets and Services do not represent the sale of any securities to Customers, or the provision of advice regarding investing in securities. Accordingly, CULT WINES is not regulated by any of the Canadian Securities Administrators and your investment will not be covered by the Canadian Investor Protection Fund. Customers should carry out their own due diligence before committing to an investment in the Assets.
4. Capitalised terms, which are not otherwise defined in these Terms, will have the meanings given to them in Clause 23.
ACCOUNT OPENING AND DISCRETIONARY AND NON-DISCRETIONARY ACCOUNTS
1. A Customer must be at least 18 or 19 years of age, depending upon province of residence, to open an Account.
2. In order to create an Account with CULT WINES you will need to first submit an Account Opening Request through the CULT WINES website.
3. Each Customer will be taken through a series of questions and will be required to provide information in order to determine investment objectives and investment risk tolerance, with respect to a fine wine portfolio as described on the website and/or in the Customer’s discussion with a CULT WINES relationship manager (the “Customer’s Objectives”).
4. A Customer will have a portfolio of Assets greater than CA$12,500, non-discretionary or discretionary, as specified in the Account Opening Request. Regardless of specification of a non-discretionary or discretionary Account, CULT WINES encourages all Customers to engage with their portfolios.
5. If a Customer has a non-discretionary Account ( at a minimum of CA$45,000 or greater):
  1. working with the CULT WINES relationship manager, the Customer will receive a tailored portfolio recommendation on an initial consultation, together with regular portfolio reviews;
  2. from time to time, CULT WINES may make additional recommendations and suggestions for particular Assets for the Customer to purchase;
  3. the Customer will be able to accept or reject any purchase and sale recommendations provided by CULT WINES. However, the Customer should be aware that any decision made to vary from the recommendations of CULT WINES will result in variance from the benchmark portfolio and may also deviate from the Customer’s Objectives for risk and returns as communicated to CULT WINES by the Customer;
  4. the Customer is also able to make requests for particular Assets and CULT WINES will confirm whether such Assets are available in accordance with Clause 5.5 and 2.5.6;
  5. once the Customer has decided on a particular purchase of Assets, the Customer will need to place an Order in accordance with these Terms. Orders can be placed via the website, mobile apps, email or telephone;
  6. CULT WINES may accept or reject an Order placed by the Customer in its sole discretion. Acceptance by CULT WINES of an Order will take place when CULT WINES confirms the Order:
    1. verbally or by telephone (in which case any subsequent written confirmation provided to the Customer is only for information and evidentiary purposes); or
    2. in writing, by post or email to the Customer; and
  7. if CULT WINES rejects any Order, CULT WINES will inform the Customer of this; this might be, for example, because there is not a suﬃcient quantity of Assets available to CULT WINES to purchase or the terms upon which such Assets are available are not acceptable to CULT WINES, in its sole discretion.
6. Where the Customer has a discretionary Account:
  1. CULT WINES will make decisions on the purchase and sale of Assets, and the Customer hereby grants and CULT WINES hereby accepts appointment as a discretionary manager for such purposes; and
  2. the Customer will be bound by all decisions made by CULT WINES regarding the purchase and sale of Assets.
7. By submitting an Account Opening Request the Customer agrees to be bound by these Terms.
8. CULT WINES may accept or reject an Account Opening Request in its sole discretion.
9. Acceptance of the Customer’s Account Opening Request will take place when CULT WINES informs the Customer that CULT WINES accepts the Account Opening Request, at which point the Contract will come into existence between CULT WINES and the Customer.
10. If CULT WINES does not accept the Customer’s Account Opening Request, CULT WINES will inform the Customer. This might be, for example because there is an error in the details provided in the Account Opening Request or the Customer failed any age verification or other checks.
ACCOUNT SERVICES
1. CULT WINES will make purchase and sale recommendations of Assets to the Customer (and, if the Customer has a discretionary Account, purchase and sale decisions) in order to reflect the Customer’s Objectives.
2. CULT WINES will purchase and sell Assets on behalf of the Customer in accordance with Clauses 5, 2.6 and 3.5, and after any required consultation with the Customer as described on the website at https://www.wineinvestment.com/ca/how-it-works/plans-and-fees/
3. Unless: (a) otherwise agreed in writing by the CULT WINES and the Customer, (b) the Customer has a discretionary Account, or (c) provided in the Contract, all purchases and sales will require the explicit authorisation (either verbal or written) of the Customer before execution.
4. CULT WINES uses automated decision making powered by artificial intelligence to provide some of the Services.
5. The Customer hereby appoints CULT WINES as its agent for the duration of the Contract and authorises CULT WINES and its designees, sub-agents, affiliates and sub-contractors to do any acts it may consider necessary or desirable in order to facilitate the sale or purchase of Assets (whether by auction, private bargain or otherwise) on behalf of the Customer in order to perform the Account Services.
CULT WINES MAY MAKE CHANGES TO THE CONTRACT
1. CULT WINES may make minor changes to the Contract to reflect changes in relevant laws and regulations.
2. If CULT WINES intends to make any other changes to the Contract, CULT WINES will notify the Customer at least 60 days in advance and the Customer will have a right to terminate the Contract before the changes take effect and any Assets paid for but not delivered to the Storage Facility will still be processed in accordance with the existing terms.
3. To exercise the right to terminate in Clause 2, the Customer must inform CULT WINES in writing at [email protected].
4. The Customer will be deemed to have accepted the Terms as amended if the Customer:
  1. continues to place any Orders with CULT WINES or otherwise use the Account Services; or
  2. does not otherwise notify CULT WINES within 60 days of receipt of the notice from CULT WINES that the Customer wishes to exercise the right of termination under Clause 2.
CUSTOMER ORDERS
1. The Customer must be aged 19 or 18 years or older, depending upon province of residence, to place an Order. It is illegal for CULT WINES to offer its services to anyone under the age of 19 or 18, depending upon province of residence.
2. Whether under a discretionary or non-discretionary Account, any funds paid by the Customer to CULT WINES in respect of purchases of Assets:
  1. where CULT WINES is unable to source and purchase the ordered Assets at the price agreed with the Customer; or
  2. which have not been fully expended on the purchase of Assets and which remain on account, will be fully refundable at the request of the Customer.
3. CULT WINES or CULT WINES LIMITED, or their respective affiliates, officers, directors and shareholders may already own or may source Assets sold to the Customer, and CULT WINES may sell them to the Customer as principal rather than as agent. This will always be done at or below the Liv-ex Mid Price.
AMENDING ORDERS
1. The Customer must inform CULT WINES if the Customer wants to make a change to an Order. CULT WINES may accept or reject such a request at its discretion. CULT WINES will inform the Customer of whether the change is possible. If the change is possible, CULT WINES will inform the Customer about any changes to the prices or anything else which would be necessary as a result of the requested change. The Customer will then be asked to confirm the change.
2. CULT WINES may make minor changes to an Order, the Assets or the Services without consent by the Customer to reflect changes in relevant laws and regulations.
3. If CULT WINES intends to make any other changes to an Order, the Assets or the Services, CULT WINES will notify the Customer at least 60 days in advance and the Customer will have a right to cancel the relevant Order before the changes take effect and receive a refund for any Assets paid for but not delivered to the Storage Facility, or to cancel the Contract for provision of the Services before the changes in the Assets or the Services take effect.
4. To exercise the right to terminate in Clause 3, the Customer must inform CULT WINES in writing at [email protected].
5. The Customer will be deemed to have accepted the Order, the Assets or the Services as amended if the Customer:
  1. continues to place any Orders with CULT WINES or otherwise use the Services; or
  2. does not otherwise notify CULT WINES within 60 days of receipt of the notice from CULT WINES that the Customer wishes to exercise the right of termination under 3.
TITLE, RISK AND DOCUMENTATION
1. Title to the Assets passes to the Customer on the later of:
  1. delivery of the Assets to the Storage Facility (or other agreed location); and
  2. the date payment for those Assets has been made in full by the Customer.
2. Assets that are delivered to a Storage Facility will be examined for conformity to description and for condition, authenticated, checked in and allocated to the Customer with a unique ID number, and shall remain under the indirect control of CULT WINES unless and until the Assets are sold, or delivered to or made available to:
  1. the Customer (or a third party nominated by the Customer); or
  2. a carrier organised by the Customer.
3. On delivery to the Storage Facility the Customer’s Assets will be held in a named sub-account, clearly identifiable as the Customer’s property. Once the Customer has made payment for the Assets in full, CULT WINES will also provide the Customer’s sub-account code and relevant rotation numbers per Asset through the customer portal on the website. The Customer is advised to log in to the customer portal at http://www.wineinvestment.com/ca/my-account/ regularly and to download all available information regarding the Assets.
CUSTOMER FUNDS
1. Any uninvested funds belonging to a Customer shall be held in a separate customer bank account maintained by CULT WINES for all Customers and will not be part of CULT WINES’ own funds. CULT WINES will make every effort to use the Customer’s funds for the purchase of Assets for the Customer as soon as CULT WINES has the Customer’s instructions to do so (or discretion over the Customer’s portfolio is granted), and the Customer will not be charged a management fee on uninvested funds of the Customer. CULT WINES may apply any uninvested funds to payment of amounts due to CULT WINES by the Customer from time to time.

PAYMENTS AND FEES

If the Customer has a non-discretionary Account, the Customer will pay CULT WINES in full for Assets ordered, together with any taxes or expenses payable by the Customer under these Terms, at the time of placing an Order. The price payable by the Customer for the purchase of any Assets ordered by the Customer and supplied by CULT WINES will be:
1. the purchase price quoted by CULT WINES at the time the Customer places the Order;
2. such other price as CULT WINES may advise to and agree with the Customer at or before the time CULT WINES accepts the Customer’s Order.
The Customer will pay CULT WINES the applicable Account Fees (inclusive of VAT, HST, GST, provincial sales taxes and any other applicable sales or commodity taxes) set out in clause 9.3 and 9.4, within 30 days of the date of the invoice issued by CULT WINES.
Capital Investments will be subject to the Management Fees at the levels set out below.

Total Capital Investment	Management Fee
From CA$12,500	2.95%
From CA$45,000	2.75%
From CA$175,000	2.50%
From CA$850,000	2.25%
From CA$1,750,000+	2.00%

The Customer will pay to CULT WINES the above fees based on Gross Asset Value. In addition to recommendations regarding the purchase and sale of Assets, and if applicable the exercise of discretion by CULT WINES, the Management Fee covers the cost of any applicable storage fees, record keeping and insurance in respect of any Assets held in the Storage Facility on Customer's behalf, as set out on the CULT WINES website.
The Management Fee will be calculated Monthly and will accrue as a debit on a customer’s account throughout the investment term. Any outstanding balance of fees that have accrued will be offset against any funds held on the customer’s account on a monthly basis. Any transactions on the customer’s account throughout the year, will in the first instance offset fees automatically before any other transactions can take place. On the first day of the annual anniversary of the account opening, if a customer has outstanding fees they will be sent a statement detailing any owed fees, this will be payable within 30 days of the date of the invoice issued by CULT WINES through direct payment.
The Customer will make payment to CULT WINES by bank transfer or in such other form as CULT WINES agrees with the Customer from time to time. CULT WINES will make payment to the Customer by bank transfer to a Canadian financial institution as the Customer may direct or in such form as CULT WINES agrees with the Customer from time to time. In no event will CULT WINES accept or make any payment in cash.
If the Customer does not make any payment to CULT WINES by the due date CULT WINES may charge interest to the Customer on the overdue amount at the annual rate of interest established by The Toronto-Dominion Bank as its reference rate from time to time for commercial advances made by it in Canada in Canadian Dollars plus 3% per annum. This interest will not compound and will accrue on a daily basis from the due date until the date of actual payment in full of the overdue amount, whether before or after judgment. The Customer will pay CULT WINES interest together with any overdue amount. Any payment received by CULT WINES from the Customer will be applied first to interest and the balance to any overdue amount.
Without affecting any other rights or remedies CULT WINES might have by law or in these Terms, if the Customer does not make a payment in full when it is due and still does not make full payment within 30 days of CULT WINES reminding the Customer in writing that it is overdue, CULT WINES may also:
keep some or all of the Customer’s Assets until the Customer has paid any outstanding amounts due;
sell some or all of the Customer’s Assets, on the Customer’s behalf, to cover the amounts owed. From the proceeds of such sale CULT WINES will deduct:
1. the amount the Customer owes to CULT WINES; and
2. the costs of sale; and

CULT WINES will credit the balance of any such sale to the Customer’s Account; and/or

cancel any outstanding Order placed by the Customer and apply any amount paid in respect of such Order to the payment of amounts owing to CULT WINES.
If the Customer thinks an invoice is wrong, the Customer will promptly inform CULT WINES. The Customer will not have to pay any interest under Clause 7 in respect of the disputed amount until the dispute is resolved. After the dispute is resolved CULT WINES will be entitled to interest on correctly invoiced sums from the original due date, at the rate specified in Clause 9.7.
CULT WINES may increase the related Account Fees to account for such increase in costs. CULT WINES will notify the Customer of any proposed increase to the Account Fees in accordance with Clause 4 of these Terms. If Customer does not agree with any proposed increase, the Customer is entitled to terminate these Terms in accordance with the provisions in Clause 4.

VALUATIONS
1. Valuations of the Customer’s Assets will be available through the CULT WINES online management portal. Prices are provided independently by Liv-ex on a daily basis.
2. For the purpose of the calculation of the Account Fees or any other valuation under the Contract, unless expressly stated otherwise in the Contract, CULT WINES will use the “Liv-ex Mid Price”, except in the rare instances where a quote is not available from Liv-ex or any other supplier of the Liv-ex Mid Price, in which case CULT WINES will fair value the position using independent third party sources such as Wine Searcher.
3. A copy of the valuation used and the methodology will be available upon request.
4. CULT WINES takes all reasonable care to ensure that the price of the Assets advised to the Customer are correct. However, if CULT WINES discovers an error in the price of the Assets ordered:
  1. where the correct price of the Assets at the Order date is less than CULT WINES’ stated price at the Order date, CULT WINES will charge the lower amount; and
  2. if the correct price of the Assets at the Order date is higher than the price stated at the Order date, CULT WINES will contact the Customer for instructions before processing the Order.
CURRENCY
1. Given that London, UK is the global centre for fine wine trading and storage, asset prices and Account Fees are stated in Pounds Sterling (GBP). However, the Customer may request to pay in the following currencies: Canadian Dollars (CAD), Pounds Sterling (GBP).
2. Any currency conversion required will be calculated in accordance with OANDA’s Exchange Rates API as at the date of the invoice raised by CULT WINES.
TAXES AND EXPENSES
1. Taxes, levies and duties, including VAT, HST, GST, provincial sales taxes and any other applicable sales or commodity taxes, which apply to the supply of any Asset or the performance of any Service:
  1. will be the responsibility of CULT WINES, if the price at which CULT WINES supplies such Asset or Service is expressed to be inclusive of the particular taxes, levies and duties (and for greater certainty, it is anticipated that many Assets to be purchased by or on behalf of the Customer will be in bond, and therefore VAT and duties will not be payable at the time of the Customer’s purchase, but will be payable by the Customer if the Assets are removed from bond); and
  2. in every other case, will be responsibility of the Customer.
2. The Customer must pay on demand CULT WINES in full for:
  1. any agent’s fees, costs of handling and delivery or other expenses incurred as a result of delivery of any Asset to an address other than the Storage Facility where requested by the Customer; and
  2. any taxes, levies and duties, including VAT, HST, GST, provincial sales taxes and any other applicable sales or commodity taxes, which are to be borne by the Customer under Clause 1, together with any ﬁne, penalty or interest paid or payable by CULT WINES because of a default by the Customer in paying such amounts.
3. Income tax rules, including capital gains, personal use property and business trading tax rules and potential tax liability on profits from fine wine differ depending on the Customer’s location and the applicable jurisdiction. CULT WINES advises Customers to speak with a tax advisor prior to submitting the Account Opening Request or an Order, in order to understand their tax liability. CULT WINES will not be responsible for any such taxes payable by the Customer in any jurisdiction.
DELIVERY
1. All Assets ordered by a Customer will be delivered into the Storage Facility unless the Customer requests an alternative delivery location in their Order and CULT WINES accepts this requested
2. Delivery is deemed to take place:
  1. when the Asset arrives into the Storage Facility (or such other location agreed between the parties); or
  2. where the Asset is already in stock at the Storage Facility, once payment for the Assets has been received in full from the Customer by CULT WINES; or
  3. in respect of Assets purchased En Primeur, when the Assets are delivered to the Storage Facility (or such other location agreed between the parties) noting that this will only take place once the Assets have been released by the producer; or
  4. in respect of Assets purchased for collection by the Customer, when the Assets leave the Storage Facility or other CULT WINES’ premises.
3. CULT WINES will deliver the Assets to the Storage Facility or at such other agreed location as soon as reasonably possible after the day on which CULT WINES accepts the Customer’s Order. No warranty is given by CULT WINES that the Assets will be delivered on or by a specific date. However, the Assets will be recorded against the Customer’s Account as soon as the Customer has paid the relevant invoice.
4. Subject to Clause 2.1, the costs of delivery and insurance prior to delivery are included in the prices quoted for the Assets.
5. If CULT WINES’ supply of the Assets is delayed by an event outside of its control then CULT WINES will contact the Customer as soon as possible and will take steps to minimise the effect of the delay. CULT WINES will not be liable for delays caused by the event outside of its control.
6. If, following acceptance of an Order, any Asset speciﬁed therein becomes unavailable for any reason, CULT WINES will use reasonable endeavours to oﬀer an alternative Asset to the Customer. CULT WINES will refund to the Customer:
  1. the diﬀerence between the amount paid for the unavailable Asset and the price of any alternative Asset which the Customer agrees to purchase; or
  2. the amount paid in respect of the unavailable Asset, if the Customer does not choose to purchase the alternative Asset.
7. Any additional amount payable in respect of an alternative Asset under Clause 6.1 must be paid by the Customer at the time of agreeing to purchase the alternative Asset.
STORAGE AND COLLECTION
1. Assets delivered into the Storage Facility will be stored until they are sold (by CULT WINES acting on behalf of Customer as agent or to CULT WINES as principal) or the Customer requests their collection or delivery from the Storage Facility. The Assets will always be marked as the Customer’s after payment has been received and whilst stored in the Storage Facility.
2. The Customer will give CULT WINES at least 3 Business Days’ notice of an intention to remove any Assets from the Storage Facility, whether by collecting the Assets or by requesting delivery of the Assets to the Customer or to an address nominated by the Customer. Following collection or loading into the transport vehicles, the Assets will cease to be part of the relevant Customer Account and CULT WINES will no longer be required to provide further Services in respect of the relevant Assets.
3. The Customer will, in any notice given under Clause 1 specify the particular Assets to be collected and the details of the person collecting the Assets on behalf of the Customer. CULT WINES is under no obligation to make Assets available for collection from the Storage Facility until the Customer has paid to CULT WINES all amounts owing to CULT WINES (and/or the Storage Facility) in respect of purchase of the Assets, their storage and any other amounts then owing to CULT WINES by the Customer for the Management Fee, or otherwise. If CULT WINES makes the Assets available for collection by the Customer (or by a person who CULT WINES reasonably believes to be authorised by the Customer to collect the Assets), the costs of such collection will be the sole responsibility of the Customer. Risk in the Assets will pass to the Customer on collection by the Customer (or by a person who CULT WINES reasonably believes to be authorised by the Customer to collect the Assets) or loading of the Assets into transport vehicles at the Storage Facility.
4. CULT WINES may agree to deliver the Assets to the Customer or to an address nominated by the Customer on removal from the Storage Facility. The costs of sending the Assets will be the sole responsibility of the Customer. Where CULT WINES arranges to deliver the Assets to the Customer or to an address nominated by the Customer, risk in the Assets will pass to the Customer at the point of delivery to the agreed address.
5. On removal from the Storage Facility, any applicable taxes and duties will be invoiced by CULT WINES and payable by the Customer to CULT WINES, unless the Assets are being transferred directly to another In-Bond Facility.
6. The Assets will be held in Storage Facilities in the UK, Europe and potentially other locations outside of Canada. The Assets are segregated by Customer. As such, Customer owns Customer’s Assets and may elect to remove some or all of the Assets from storage and take personal possession if the Customer so chooses. If the Customer wishes to transfer Assets to another jurisdiction after the Customer or its designate has taken possession of them (for example, importing to Canada), the Customer will be responsible for any transport or importation costs including VAT, compliance with relevant rules or laws and payment of applicable taxes, duties and/or import charges. Please note that if the Customer removes the Assets from an In-Bond Facility, the Customer will be required to pay VAT and applicable duties unless the Assets are transported to another In-Bond Facility. CULT WINES does not provide any such transportation or importation services. CULT WINES may provide the Customer with contact information regarding third party, including governmental, services that assist with transport and / or importation, however, if CULT WINES provides such information, it is solely for the purpose of the Customer being able to gather the Customer’s own information. CULT WINES makes no representations or endorsements regarding such third party services and is not liable for the services of such third parties.
INSURANCE
1. CULT WINES, CULT WINES LIMITED, or their respective agents and subcontractors will take out and maintain a policy of insurance which covers the Assets for their declared replacement value against the risks of physical loss, destruction and damage, at all times from actual receipt of the Assets into a Storage Facility until they are made available for collection or dispatched in accordance with Clause 14. Such policy of insurance:
2. will be subject to maximum limits in the aggregate and for each loss or series of losses; and
3. will be subject to exclusions, limitations and other terms;
4. On request from the Customer, CULT WINES will promptly provide to a Customer, on whose behalf CULT WINES holds or has at any time held Assets in a Storage Facility, a copy of the terms of supply of the insurance policy taken out pursuant to Clause 1.
5. The liability of CULT WINES, CULT WINES LIMITED, or their respective agents and subcontractors to the Customer in respect of any Assets insured pursuant to Clause 1 is limited to the proceeds actually recovered by CULT WINES under such policies of insurance, less expenses of such recovery.
6. In the case of an insurance claim involving property of more than one Customer of CULT WINES, CULT WINES LIMITED, or their respective agents and subcontractors, the liability of CULT WINES, CULT WINES LIMITED, or their respective agents and subcontractors to the Customer in respect of any Assets insured will be a pro-rata amount of the insurance proceeds recovered (less the expenses referred to in Clause 3) proportionate to the value of the property of the Customer which has been lost, destroyed or damaged versus the value of all property which has been lost, destroyed or damaged.
7. For clarity, given the nature of wine, insurance does not cover natural ageing, inherent defects, oxidation, ordinary/normal leakage or fraudulent bottles. In the case of fraudulent bottles, CULT WINES has never experienced any instances of same and in the unlikely event that a fraudulent bottle should pass through its screens, CULT WINES will replace the bottle for the Customer if possible, or credit the Customer’s Account at the then prevailing price.
SALE AND LIQUIDATION
1. The Customer may ask CULT WINES at any time after the delivery date referred to in Clause 13 to value the Assets and to arrange for the sale of the Assets on the Customer’s behalf (which is different from CULT WINES initiating the sale), provided the Customer gives CULT WINES at least 30 days’ written notice (or less if agreed to between the parties). In doing so, the Customer appoints CULT WINES as the Customer’s agent and authorises CULT WINES and its designees to perform any acts it or they may consider necessary or desirable in order to facilitate such a sale, whether by auction, private bargain or otherwise. CULT WINES or CULT WINES LIMITED or any of their respective affiliates, officers, directors or shareholders may purchase Assets from the Customer’s Account, so long as the price paid is not less than the Liv-ex Mid Price.
2. CULT WINES will use reasonable endeavours to sell the Asset at the best price obtainable within the agreed timeframe upon receiving instructions from the Customer to sell. Prior to any sale requested under Clause 1, CULT WINES will agree with the Customer a minimum or reserve price the Customer will accept.
3. CULT WINES does not charge fees or commissions for the sale of the Asset on Liquidation. However, expenses may be incurred and payable by the Customer if the Asset is sold through a third party such as an auction house.
LIABILITY
1. Nothing in these Terms limits or excludes either party’s liability for personal injury caused by negligence or for fraud or fraudulent misrepresentation.
2. Notwithstanding Clause 1, the Customer acknowledges that the nature of the Assets is such that CULT WINES cannot and does not provide any warranties or conditions, whether implied or express, as to:
  1. the merchantability, quality, drinkability, fitness for purpose or freedom from defect or deterioration of the Assets at any time, in so far as it does not relate to the negligence or wilful misconduct of CULT WINES; or
  2. the market value or appreciation in value of the Assets.
3. CULT WINES does not promise or guarantee any level of profit or performance, or any return on any investment in Assets, whether in a discretionary or non-discretionary Account, whether the Assets are purchased or sold through CULT WINES or through a third party, and whether the Assets are sold on a voluntary or involuntary basis, or in any particular channel.
4. Subject to Clauses 1 and 17.5 and to the extent permitted by law:
  1. the liability of CULT WINES and CULT WINES LIMITED will be limited to direct damages, and CULT WINES AND CULT WINES LIMITED will have no liability, for indirect, consequential, contingent, special or incidental losses or damages related to or arising from the Contract, the Assets or Services, whether based on breach of contract or tort, including negligence, strict liability, breach of warranty, failure of essential purpose, fundamental breach or otherwise, even if advised of the possibility thereof; and
  2. CULT WINES’ and CULT WINES LIMITED’s total liability to Customer under these Terms shall be limited in the aggregate, in respect of each 12-month period calculated from the date the Customer opened an Account (each a “Contract Year”), to the lower of: (a) the total Account Fees paid by Customer under these Terms during such Contract Year; and (b) $150,000.
5. To the extent CULT WINES, through its breach of these Terms or its own negligence or wilful misconduct, causes loss or damage to Customer’s Assets, CULT WINES will be responsible to the Customer for reasonably foreseeable loss and damage up to the cost of replacing the Assets, or re-supplying equivalent products, or paying to the Customer a sum equivalent to the cost of such replacement or re-supply. CULT WINES will not be responsible for any loss or damage that is not reasonably foreseeable.
CONFIDENTIALITY
1. During the term of the Contract each party will keep confidential the Confidential Information of the other party and will use the other party’s Confidential Information solely for the purpose of performing its obligations and exercising its rights under the Contract. Neither party will divulge to any third party any Confidential Information and will restrict disclosure of the same to its employees who need to know it in furtherance of the above purpose.
2. These obligations above will not apply to Confidential Information which:
  1. was already or becomes generally available and in the public domain at the time the Confidential Information was made available, without breach of these Terms; or
  2. was already demonstrably known to the other party before it was first provided to the other party under these Terms.
3. Nothing will prevent either party from disclosing Confidential Information of the other, where they are under an obligation to do so by law.
PERSONAL INFORMATION AND CUSTOMER IS ACTING AS SOPHISTICATED PRINCIPAL
1. CULT WINES will only use the Customer’s personal information as set out in the CULT WINES Privacy and Cookies Policy, a copy of which can be found here and which is available on the CULT WINES website. The Customer hereby authorizes all such use.
2. The Customer must enter into this Contract as principal for the account of the Customer, and not as a trustee, agent or attorney, and represents and warrants to CULT WINES that: (i) the Customer, if not an individual, is duly authorized to enter into this Contract and all other necessary documentation in connection with this Contract, to agree to the terms and conditions contained herein and therein and to make the representations, certifications, acknowledgments and covenants made herein and therein; (ii) this Contract has been duly authorized, executed and delivered by or on behalf of, and constitutes a legal, valid and binding agreement enforceable against, the Customer; (iii) the Customer acknowledges that CULT WINES may be required by law to disclose to certain regulatory and taxation authorities the identity of and certain information regarding the Customer and will provide all the information concerning the Customer as required by this Contract and any other necessary documentation in connection with this Contract, and will provide any such further information as may hereafter be required; and (iv) the Customer is familiar with the international wine investment market, is capable of withstanding losses on any investment the Customer makes under this Contract and will seek appropriate advice when necessary to assist the Customer in making decisions to purchase or sell Assets.
TERMINATION
1. CULT WINES may terminate the Contract immediately without notice if:
  1. the Customer is in breach of these Terms;
  2. the Customer does not make any payment when it is due and still does not make payment within 30 days of CULT WINES reminding the Customer that payment is due;
  3. the Customer does not, within a reasonable time of CULT WINES asking for it, provide information that is necessary for CULT WINES to provide the Assets or Services;
  4. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
  5. an application is made to court, or an order is made, for the appointment of an administrator, receiver or trustee, anyone becomes entitles to appoint such a person, a notice of intention to appoint any such person is given or any such person is appointed, over the Customer or its assets;
  6. any holder of security over the assets of the Customer has become entitled take any steps to realize upon or enforce such security;
  7. the Customer is the subject of a bankruptcy petition, application or order;
  8. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which the Customer is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 1.4 to 20.1.7 (inclusive); or
  9. the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
2. If CULT WINES terminates the Contract in the situations set out in Clause 1:
  1. CULT WINES will refund any money the Customer has paid in advance for Assets that have not yet been delivered but CULT WINES may deduct or charge the Customer compensation for the costs it will incur as a result of the Customer breaching these Terms; and
  2. the Customer will, at its own cost, remove its Assets from the Storage Facility, either by collecting the Assets or arranging the transfer of its Assets to another In-Bond Facility, within 30 days of the date of termination.
3. CANCELLATION
4. Where the Customer is an individual not acting for the purposes of a business, the Customer has a right to cancel an Order without any reason. The Customer can do this by sending CULT WINES a written notice of cancellation within:
  1. 14 days from initial delivery of the Assets by CULT WINES or its designee to the Storage Facility (or alternative agreed location); or
  2. in respect of En Primeur, within 14 days of the Order date.
5. To exercise the right to cancel in Clause 4, the Customer must inform CULT WINES by email: [email protected] of the Customer’s decision to cancel the Order by a clear statement.
6. If the Customer cancels an Order under Clause 20.4 within the 14 day cancellation period, any money that has been paid to CULT WINES in respect of that Order including the Asset price will be returned to the Customer. CULT WINES will make the reimbursement without undue delay, and not later than 14 days after the day on which CULT WINES is informed about the Customer’s decision to cancel the Contract.
7. CULT WINES will make any such reimbursement using the same means of payment as the Customer used to make payment to CULT WINES, unless the Customer has expressly agreed otherwise; in any event, the Customer will not incur any fees as a result of the reimbursement.
GENERAL
1. Transferring the Contract. CULT WINES may transfer its rights and obligations under these Terms to another organisation or entity. CULT WINES may also use CULT WINES LIMITED, a company registered in England and Wales, and the respective affiliates and/or subcontractors of CULT WINES and CULT WINES LIMITED to help it provide the Assets and Services. The Customer may only transfer the Customer’s rights or obligations under these Terms to another person if CULT WINES agrees to this in writing.
2. Entire Agreement. The Contract and the documents referred to in it are the entire agreement and understanding between CULT WINES and the Customer and supersede any previous agreement between them. CULT WINES explicitly rejects any terms and conditions of the Customer. No other terms will apply to the Contract other than those set out in these Terms and the accepted Account Opening Request, or agreed by CULT WINES and the Customer in writing.
3. Events outside of CULT WINES’ control. If CULT WINES cannot fulfil its obligations under the Contract because of an event outside of its control then CULT WINES will contact the Customer as soon as possible and will take steps to minimise the effect of the event. CULT WINES will not be liable for obligations it cannot fulfil because it is prevented from doing so by the event outside of its control.
4. Rights of third parties. This Contract is between the Customer and CULT WINES. No other person will have any rights to enforce any of its terms. Neither the Customer nor CULT WINES will need to get the agreement of any other person in order to end the Contract or make any changes to these Terms.
5. Each of the provisions of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining provisions will remain in full force and effect. CULT WINES and the Customer will then use all reasonable endeavours to replace the invalid or unenforceable terms by a valid provision, the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
6. No Consent or Waiver. No consent or waiver by CULT WINES to or of any breach of these Terms by the Customer will be effective unless in writing and signed by CULT WINES or will be considered to be a consent to or waiver of a continuing breach or any other breach by you. For example, the Customer will be responsible for any missed payments owing to CULT WINES, regardless of whether CULT WINES seeks to collect such payments or continues to provide the Assets.
7. All communications in relation to these Terms will be in writing and will be sent by mail or by email to the person being served at the relevant address, as may be notified from time to time.
  1. Notices or other communications given under or in connection with these Terms will be in writing and will be:
    1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
    2. in the case of notices or communications sent to CULT WINES, by email to [email protected] and in the case of notices or communications to the Customer, by email to the address specified in the Account Opening Request.
  2. Subject to Clause 7.3, any notice or communication will be deemed to have been received:
    1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
    2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
    3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 7.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  3. Instructions from the Customer to CULT WINES regarding Asset purchases or Liquidation of Assets will not be deemed to have been received or processed until CULT WINES confirms receipt of such instructions to the Customer.
8. Governing Law and Legal Proceedings. These Terms are governed by the laws of Ontario and the laws of Canada applicable in Ontario and the parties can bring legal proceedings in respect of the Assets or Services in the provincial courts located in Toronto, Ontario.
CONTACTING US
1. If the Customer has any questions regarding these Terms, the Customer may contact the CULT WINES team at email: [email protected].
2. If CULT WINES has to contact the Customer it will do so by telephone or by writing to the Customer at the email address or postal address provided in the Account Opening Request.
DEFINITIONS AND INTERPRETATION
1. In these Terms:
  1. any phase introduced by the terms “including”, “includes” or “for example” or any similar expression will be construed as illustrative and will not limit the meaning of the words preceding those terms;
  2. a reference to writing or written includes email;
  3. a reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established; and
  4. any reference to a time refers to the time in London, UK.

In these Terms the following deﬁnitions apply:

“Account” means an account created by the Customer with CULT WINES in accordance with these Terms;
“Account Fees” means the fees payable by the Customer for the Services;
“Account Opening Request” means the application form on the website completed by the Customer and submitted to CULT WINES to open an Account;
“Account Services” means the services provided by CULT WINES in connection with managing the Customer’s Account, more particularly described on the website and including storage and insurance;
“Assets” means: (a) any wine or other goods of any kind offered by CULT WINES to a Customer under the Contract; and (b) any wine or other goods of any kind held by CULT WINES for and on behalf of Customer;
“Business Day” means any day other than a Saturday, Sunday or public holiday in the United Kingdom and Toronto, Ontario;
“Capital Investment” means the amount paid from time to time by or on behalf of the Customer to CULT WINES for the purchase of Assets under the Contract (excluding any Account Fees);
“Confidential Information” means the terms of the Contract between the parties and any and all information in any form whatsoever (written, oral, digital, physical, explicit, implicit) which is identified and/or marked as confidential, which derives value to CULT WINES from being confidential or which would be regarded as confidential by a reasonable person including information pertaining to the organisation, set-up, business, finances and customers of CULT WINES or CULT WINES LIMITED;
“Contract” has the meaning set out in Clause 1.2;
“Contract Year” has the meaning set out in Clause 17.4.2;
“Customer” means the customer stated on the Account Opening Request;
“Customer’s Objectives” has the meaning set out in Clause 2.3;
“En Primeur” means wine prior to packaging for retail distribution, such as still in the barrel or tank when purchased;
“Gross Asset Value” means the total value of the Customer’s Assets held in the Customer’s Account from time to time (for greater certainty, excluding cash);
“GST” means the federal Goods and Services Tax or similar or equivalent sales tax;
“HST” means the federal and provincial Harmonized Sales Tax or similar or equivalent sales tax;
“In-Bond Facility” means a customs-controlled bonded warehouse for the retention of imported goods until the duty and VAT or other taxes owed are paid;
“Initial Capital Investment” means the first Capital Investment made by the Customer under the Contract;
“Initial Investment Date” means the date on which CULT WINES receives the Initial Capital Investment from the Customer;
“Liquidation” means either:
- (a) the sale of Assets under the Contract, by or on behalf of the Customer; or
- (b) the removal of Assets by or on behalf of the Customer from the Customer’s Account in accordance with the Contract;
“Liv-ex” means Liv-ex Ltd, the independent ﬁne wine exchange and wine trade price database;
“Liv-ex Mid Price” means the Liv-ex Mid Price published by Liv-ex from time to time, or a reasonable replacement therefor as determined by CULT WINES in the event that same is no longer available from Liv-ex, or in the event that CULT WINES reasonably considers that a more accurate source of fine wine market pricing is available to CULT WINES;
“Management Fee” means the management fee set out in Clause 9.4 and on the website.
“Month” means the period of one month following the Initial Investment Date, and each successive one month period thereafter (so, if the Initial Investment Date is 5 January, the first Month will end at midnight on 4 February and the second Month would end at midnight on 4 March);
“Order” means an order placed by (or on behalf of) the Customer to purchase Assets from CULT WINES;
“Services” means Account Services, storage, insurance, examination, authentication, delivery and other services provided or performed by CULT WINES or its designee for a Customer under these Terms;
“Storage Facility” means a suitable government bonded warehouse or, if duty-paid, secure warehouse or facility for storage of the Assets as determined from time to time by CULT WINES in its discretion, currently at a London City Bond facility in Melksham, UK;
“Terms” has the meaning set out in Clause 1.1;
“Total Capital Investment” means:
- the Customer’s total Capital Investment during the term of the Contract; minus
- any such Capital Investment (excluding any growth) that has been returned to the Customer under the Contract (as part of Liquidation or otherwise);
“VAT” means Valued Added Tax or similar or equivalent sales tax;
“website” has the meaning set out in Clause 1.1; and
“Year” means the 12 month period after the Initial Investment Date, and every successive 12 month period thereafter.