Last Updated: Jul 20 2020, 9:44 AM
This Vault Services Agreement (this "Agreement") is entered into between PWCC Vault, LLC, an Oregon limited liability company ("Vault Operator"), and the undersigned depositor ("Depositor"), effective as of the date set forth on the signature page below. Vault Operator and Depositor are referred to together as the "Parties," and each as a "Party".
The Parties agree as follows:
1. Storage and Related Services
Subject to the terms and conditions of this Agreement, Vault Operator agrees to provide to Depositor the following services (collectively, the "Services"):
- Storing the items identified in each Deposit Request (defined below) in Vault Operator's storage facility (the "Vault"), which items, once accepted by Vault Operator for storage, are referred to in this Agreement as the "Items" and each individually, an "Item";
- Receiving and handling the Items;
- Providing the market value determination, eye-appeal designation, and archival services described in Sections 3, 4 and 5;
- Maintaining the Vault Insurance (defined below) in the amount described in Section 6 for as long as any of the Items are stored in the Vault; and
- Coordinating the shipping of the Items from the Vault to Depositor or Depositor's third- party designee as described in Section 8.
2. Tender of Items for Storage
- Upon execution of this Agreement, Vault Operator will provide Depositor with a secure login for Vault Operator's website (the "Vault Site"), through which Depositor may manage and access information about Depositor’s Vault account. All requests for Services or changes to account settings must be submitted through Depositor’s secure login. Depositor is responsible for keeping this login confidential, and is responsible for any activities occurring in Depositor’s account through Depositor’s secure login. Vault Operator has no obligation to verify the identity of individuals requesting Services through Depositor’s secure login, and will honor all such requests for Services, subject to this Agreement.
- Prior to tendering any items for storage in the Vault, Depositor shall make a deposit request through Depositor's account on the Vault Site (a "Deposit Request"). Each Deposit Request will include a description of the items to be deposited and other information that Vault Operator may reasonably require. Depositor may make as many Deposit Requests as Depositor sees fit at any time during the term of this Agreement.
- Depositor represents and warrants that Depositor is the owner or has lawful possession of the items identified in any Deposit Request and all right and authority to store such items with Vault Operator, to grant the lien and security interest described in Section 10 for the full value of such items, and to direct the release of such items. Depositor will provide Vault Operator with all supplemental information that Vault Operator reasonably requests. Such information must be accurate, complete, and sufficient to allow Vault Operator or its designee to determine accurately the Market Value (defined below) of the items identified in the Deposit Request and to provide the Services.
- Depositor is responsible for delivering all items identified in a Deposit Request, properly marked and packaged for handling and storage, to Vault Operator at the address provided by Vault Operator following submission of the Deposit Request. Subject to Vault Operator's then-current policies and practices, Vault Operator may offer to furnish one or more shipping labels and/or packages for the items described in the Deposit Request and procure shipping insurance for such items in an amount designated by Depositor at Depositor’s expense.
- Vault Operator will handle, store, and deliver the items in the protective coverings in which the items are received by Vault Operator, if any. When deterioration or absence of a protective covering so requires, Vault Operator may, at its discretion and without obligation or further liability, repackage the contents in a new protective covering and charge Depositor for labor and materials.
- Vault Operator may refuse to accept any items tendered for storage if the items do not conform to the description contained in the corresponding Deposit Request or the requirements for storage listed on the Vault Site, or if the Vault Operator otherwise deems the items inappropriate for the Services. Depositor will reimburse Vault Operator for any Shipping Expenses (defined in Section 7.a) incurred by Vault Operator to return non- conforming or inappropriate items.
- Depositor acknowledges that to the extent any item included in a Deposit Request requires specialized handling (as determined in Vault Operator’s reasonable discretion), Vault Operator may decline to store such item. If Vault Operator accepts any such item for storage, Depositor agrees to the rates and charges determined and invoiced by Vault Operator for receiving and handling such item. If Vault Operator declines to store any such item, Depositor shall reimburse Vault Operator for any Shipping Expenses incurred by Vault Operator to return such item.
3. Market Value Determination
- Upon receipt and acceptance of any Items in accordance with Section 2 and prior to invoicing Depositor for Services relating to such Items, Vault Operator will determine the market value of each Item based on recent sale prices of that Item using Vault Operator's proprietary algorithm (the "Market Value"). Vault Operator will reassess the Market Value of each Item in the Vault as Vault Operator deems necessary or appropriate.
- If the Market Value of any Item is less than the amount paid by Depositor for the Item (the "Original Purchase Price"), Depositor may elect to revise the value of the Item as listed in Vault Operator's records to be equal to the Original Purchase Price, provided that the Original Purchase Price is reasonable in Vault Operator's judgment. To make this election, Depositor must submit a request to Vault Operator through Depositor's secure login on Vault Operator's website (the "Vault Site") identifying the Items to which Depositor's election applies and the Original Purchase Price for such items.
- If an Item has been appraised by a third-party accredited appraiser, Depositor may elect to revise the value of the Item as listed in Vault Operator’s records to be equal to the appraised value of the Item (the "Appraisal Value") by submitting a request through the Vault Site.
- Depositor acknowledges that electing to list the Original Purchase Price or Appraisal Value in Vault Operator’s records could increase both the insurance coverage provided by Vault Operator for the applicable Items pursuant to Section 6 as well as the fees assessed by Vault Operator for such Items pursuant to Section 7. In the event of any insurance or other claim based on or relating to an Item's Original Purchase Price or Appraisal Value, Depositor may be required to verify the Original Purchase Price or Appraisal Value by furnishing receipts, appraisal records, or other evidence confirming the Original Purchase Price or Appraisal Value.
If any Item is a collectible sports trading card produced before the year 1987 and has a Market Value, Original Purchase Price, or Appraised Value of more than $250, Vault Operator will evaluate the Item using the custom "Eye-Appeal Scale" developed by Vault Operator's affiliate, PWCC Marketplace, LLC ("PWCC Marketplace"), and, if merited, provide a designation to the Item in accordance with PWCC Marketplace's standard practice, as conveyed on PWCC Marketplace's website.
5. Archival Services
Vault Operator will provide the following archival services:
- Create a digital archive of each Item comprising high-resolution digital photographs and a list of the Item's relevant specifications, including the most recently assessed Market Value of the Item, the quality grades applied to the Item by professional grading companies and the appropriate eye-appeal designation determined by Vault Operator, if applicable (each, an "Archival Record");
- Maintain the Archival Record for each Item as long as the Item is stored in the Vault;
- Provide Depositor with access to the Archival Records through Depositor’s account on the Vault Site for all Items stored in the Vault by Depositor at any time (collectively, "Depositor's Portfolio") and enable sharing of Archival Records with third parties, at Depositor's discretion.
- Vault Operator will maintain and carry, at its own expense, insurance in full force and effect covering the Items then stored in the Vault against theft, fire, or other casualty in a sum no less than the aggregate Market Value, Original Purchase Price, or Appraisal Value of such Items as reflected in Depositor's Portfolio (collectively, the "Insured Value"), in all cases subject to industry standard terms, conditions, and exclusions (the "Vault Insurance"). Vault Insurance coverage will commence for an Item once the item has been received and a condition report completed in accordance with Section 3. Vault Operator will provide Depositor with a certificate of insurance at Depositor's request. In the event of an insured loss, Vault Operator’s liability will be limited to the amount of the insurance proceeds.
- Vault Operator will obtain customary insurance when shipping any Items pursuant to a Release Order under Section 8, provided that, such insurance need only cover the Insured Value of the Items being shipped and will remain in place only until such Items are confirmed to have been received by signature. Insurance obtained under this paragraph will be billed to Depositor as set forth in Section 7.a.
- Payment and invoicing for the Services will be as set forth on the Vault Site. Unless otherwise expressly provided, any expenses incurred by Vault Operator for shipping, handling, packaging, repackaging, labeling, tracking, insuring in transit, or otherwise facilitating the receipt, delivery or return of the Items ("Shipping Expenses") will be billed to Depositor. Vault Operator reserves the right to change its payment and invoicing policy at any time. In the event of a change, Vault Operator will provide Depositor with advance notice and post the revised payment and invoicing policy on the Vault Site. The fees payable pursuant to this Section 6, including Shipping Expenses, are referred to as "Fees".
- Vault Operator reserves the right to require payment in full of all Fees owed before the release of the Items. Depositor will not withhold payment of any Fees due and payable by reason of any set-off of any claim or dispute with Vault Operator. Depositor will not be entitled to a refund for any portion of the Fees due to removal of the Items from the Vault or termination of this Agreement prior to the end of the period covered by the applicable Fees.
8. Release of Items
- Depositor will provide Vault Operator written instructions through Depositor’s account on the Vault Site (each, a "Release Order") if Depositor desires to order any Items released from the Vault to the custody of Depositor or any third party designated by Depositor. Each Release Order will indicate the party to whom the Items will be released or transferred. Subject to (i) Vault Operator's receipt of a Release Order, (ii) payment by Depositor of all outstanding Fees, and (iii) the terms of any loan agreement or other agreement between Depositor and Vault Operator or its affiliates, Vault Operator will release and remit the requested Items to Depositor or Depositor's designee in accordance with the Release Order.
- Subject to Section 7.a, Vault Operator (i) will facilitate all shipping, handling, and insurance for the released Items with carriers and/or other third parties of Vault Operator's choosing and (ii) reserves the right to inspect all Items to be shipped and perform additional wrapping or packing if Vault Operator deems necessary. Vault Operator is not bound to transport the released Items by any particular means, schedule, vehicle or otherwise, but will transport the released Items with reasonable dispatch and will require a signature from the recipient to confirm delivery.
9. Temporary Loan of Items to Third Parties
From time to time, Depositor may request, or may agree to Vault Operator’s request, to temporarily loan certain Items to third parties, such as museums or rating agencies (each, an "Item Loan Recipient"). Depositor and Vault Operator will enter into a separate agreement setting forth the Item Loan Recipient, purpose, time period, and Items for each temporary loan. Insurance coverage for the Items on temporary loan will be provided as agreed between Vault Operator and the Item Loan Recipient, but will in no case be for less than the Insured Value. Depositor acknowledges that Items on loan are not available for release under Section 8.
10. Security Interest
Depositor hereby grants to Vault Operator a lien on, and a security interest in, all of Depositor's right, title, and interest in and to the Items and upon the proceeds from their sale to secure Depositor's performance of its obligations hereunder, including payment of all Fees. Depositor consents to Vault Operator executing and filing any appropriate statements or other documents, and otherwise doing whatever may be necessary under applicable law, to perfect and continue Vault Operator's security interest in the Items. Vault Operator may enforce its security interest in the Items at any time with respect to any Fees that are more than 30 days delinquent, including by selling all or any part of the Items in accordance with applicable law. In any such sale, the surplus after Vault Operator recoups all amounts due, if any, will be transmitted to Depositor. If the proceeds of the sale are insufficient to satisfy Depositor's obligations hereunder, Depositor will be liable for any deficiency. Depositor will be responsible to notify any third party having or claiming any interest in the Items of the lien and security interest of Vault Operator as set forth herein.
- All charges are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Depositor. Depositor will be responsible for all such charges, costs, and taxes; provided, that Depositor will not be responsible for any taxes imposed on, or with respect to, Vault Operator's income, revenues, gross receipts, personnel, or real or personal property.
- PWCC and its affiliates do not provide tax, legal or accounting advice. Your participation in the Vault or storage in the Vault as buyer, seller, or any other participation is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any transaction.
12. Warranty Disclaimer
- Except as otherwise provided in this Agreement, Vault Operator will not be liable for any loss or damage to the Items tendered, stored, or handled unless such loss or damage resulted from Vault Operator's negligence or willful misconduct.
- Depositor acknowledges that Vault Operator makes no representation or warranty that the Market Value, Original Purchase Price, or Appraised Value of any Item represents the price that may be obtained for the sale of such Item.
- Depositor acknowledges that the Eye-Appeal Scale is administered solely by Vault Operator and its affiliates and licensees and is not subject to the review of any independent auditor. Depositor further acknowledges that Vault Operator makes no representation or warranty as to the effect that any eye-appeal designation will have on the price that may be obtained for the sale of such Item.
- Except as expressly set forth in this Agreement, Vault Operator makes no representations or warranties with respect to the Vault or the Services.
13. Limitation of Liability
- IN NO EVENT WILL VAULT OPERATOR BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES. VAULT OPERATOR WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE TO THE ITEMS OR ANY DELAYS, COSTS, EXPENSES, LIABILITIES, OR CLAIMS DUE TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY SERVICE PROVIDER, AND UNDERTAKES ONLY TO USE REASONABLE CARE IN SELECTING THIRD PARTY SERVICE PROVIDERS. IF BY THE ORDER OF PROPER AUTHORITIES AT ANY POINT WHILE IN STORAGE OR TRANSIT, THE ITEMS OR A PACKAGE HAVE TO BE OPENED TO BE INSPECTED, VAULT OPERATOR WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR DELAY INCURRED TO THE ITEMS AS A RESULT OF SUCH INSPECTION. THE LIMITATIONS IN THIS PARAGRAPH WILL APPLY ONLY TO THE EXTENT SUCH AMOUNTS ARE NOT COVERED BY INSURANCE AS SET FORTH IN SECTION 6.
- IN NO EVENT WILL VAULT OPERATOR'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE INSURED VALUE OF THE ITEMS.
- Vault Operator will not be liable or responsible to Depositor, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement that is caused by or results from acts or circumstances beyond the reasonable control of Vault Operator including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, terrorist acts, riot, civil unrest, national emergency, epidemic, lockouts, labor disputes, restraints affecting carriers, telecommunication breakdown, or power outage. If Vault Operator has been unable to release or deliver the Items due to any reason specified in this Section 13.c, such Items may, in Vault Operator's sole discretion, be subject to storage charges until such Items are actually released or delivered.
14. Claims for Loss
Vault Operator will not be liable for any claims for loss, damage or delay unless Depositor gives written notice to Vault Operator of any such claim within 60 days after the accrual of the claim. No lawsuit or other action may be maintained by Depositor against Vault Operator for loss or damage to Items unless a timely notice has been given by Depositor as provided in the previous sentence and unless such lawsuit or other action is commenced no later than 12 months after the accrual of the claim. Payment of claims will be subject to proof of actual damages suffered.
15. Government Requirements
It is the responsibility of Depositor to know and comply with the requirements, laws, and regulations of any federal, state and/or local agencies pertaining in any way to the Items, including, but not limited to, regulations, laws, and requirements pertaining to marking, classification, licensing, export controls, and other transporting, importing, or exporting requirements. Vault Operator will not be responsible for action taken or fines or penalties assessed by any governmental agency because of the failure of Depositor to comply with the law, regulations, or requirements of any governmental agency or with a notification issued to Depositor by any such agency.
Depositor will indemnify and hold harmless Vault Operator and its officers, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including attorneys’ fees), which may be incurred by Indemnified Party due to: (i) Depositor's violation of this Agreement or the terms of any other agreement between Depositor and Vault Operator; (ii) Vault Operator's compliance with Depositor's instructions in the event of a dispute concerning the ownership, custody, or disposition of any items identified in a Deposit Request, (iii) any misrepresentation by Depositor as to its ownership of or legal right to possess and control such items; or (iv) transportation, storage, handling, and other charges relating to any item identified in a Deposit Request or otherwise delivered to Vault Operator by Depositor, including surcharges, undercharges, and other charges of any nature whatsoever.
- In addition to any remedies that may be provided under this Agreement, Vault Operator may terminate this Agreement with immediate effect upon written notice to Depositor, if: (i) Depositor fails to pay any amount when due under this Agreement and such failure continues for 15 days after the applicable due date; (ii) Depositor has not otherwise performed or complied with its obligations under this Agreement, in whole or in part; or (iii) Depositor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
- This Agreement may be canceled by either Party upon 30 days' prior written notice to the other Party with or without any cause or reason being given or required.
- If this Agreement is terminated for any reason, Vault Operator will provide Depositor with a Shipping Expense quote for returning the Items to Depositor and Depositor shall immediately pay Vault Operator for all Fees and such quoted amount. After receiving payment, subject to any other agreements between Depositor and Vault Operator or its affiliates with respect to the Items, Vault Operator will return the Items to Depositor. If Depositor fails to make payment, Vault Operator may avail itself of the remedies outlined in Section 10, or if Vault Operator is unable, after a reasonable effort, to sell the Items in accordance with Section 10, it may dispose of them without liability in any lawful manner.
No waiver by Vault Operator of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Vault Operator. Vault Operator's failure to demand strict performance of any provision of this Agreement will not constitute a waiver of any provision, term, covenant, or condition of this Agreement or the right to demand strict performance in the future.
19. Third-Party Beneficiaries
Except as provided in Section 16, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, will confer upon any other person or entity any legal or equitable right, benefit, or remedy. Notwithstanding the foregoing, (a) all limitations upon, and exceptions and defenses to, liability granted to Vault Operator will be automatically extended to all parent, subsidiary, and affiliated entities and all subcontractors of Vault Operator and the owners, directors, officers, employees, and agents of each of the foregoing and (b) PWCC Marketplace and PWCC Services, LLC are intended third-party beneficiaries of this Agreement.
20. Choice of Law and Forum
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of Oregon without regard to its conflict of laws principles. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted in the federal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and Multnomah County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
21. Waiver of Jury Trial
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits and other attachments to this Agreement, and the transactions contemplated hereby.
Notices must be in writing and will be deemed given upon: (i) actual receipt, (ii) the first business day after being sent by nationally recognized overnight courier for next business day delivery, with receipt acknowledged, (iii) five business days after being mailed, postage prepaid, by certified mail, return receipt requested, or (iv) when sent by e-mail, or the following business day if sent by e-mail after the close of the recipient's business day. Notices to Depositor are to be addressed to the address for Depositor on file with Vault Operator and posted in Depositor's Portfolio, which Depositor may update as necessary by logging into the Vault Site. Notices to Vault Operator must be sent to: firstname.lastname@example.org. Vault Operator may change the foregoing e-mail address by notice given under this section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any specific situation or jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other situation or jurisdiction.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
25. Cumulative Remedies
Except as otherwise stated herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Vault Operator's aggregate liability will be limited as set forth in Section 13.
26. Full Agreement
The terms and conditions of this Agreement, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Depositor will not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Vault Operator. Any purported assignment or delegation in violation of this section will be null and void. No assignment or delegation will relieve Depositor of any of its obligations hereunder. Vault Operator may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Depositor's prior written consent.
28. Successors and Assigns
This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be the same agreement.
30. Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, franchise, business trust, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity will be construed from this Agreement.