Vinous Media, LLC
Terms of Service
Last modified: May 24, 2018
These Terms of Service (this “Agreement”) is entered into between you (the “Subscriber,” “you” or “your”) and Vinous Media LLC (“VM,” “we” or “us”) and applies to your use of our website located at www.vinous.com, our related webpages, URLs and related digital applications (including, but not limited to, phone and tablet applications) (collectively, the “Community”) and governs our relationship with you. By participating in or accessing the Community, you agree to the terms of this Agreement.
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your participation in the Community and receipt of data available at or through the Community or the possible display of your Content (as such term is defined below).
By accessing or participating in the Community, you represent and warrant that you are of the legal age to purchase and consume alcohol applicable in your country of residence and the country from which you access the Community. If you do not satisfy this requirement, you must not access or use the Community.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 13 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
VM requires you to create an account in order to participate in the Community. It is a condition of your participation in or access to the Community that the information you have provided or will provide to VM (the “Registration Data”) is accurate, current and complete.
Furthermore, you agree that you will not: (a) create an account for anyone other than you without our permission, (b) create a new account without our permission if we at any time disable your account, (c) impersonate any third party or misrepresent your identity or affiliation with any third party, including, but not limited to, using another subscriber’s username, password or other account information, (d) except as may be set out in Subsection 4(b)(iv) and Section 5 below, use your profile for commercial purposes or commercial gain, (e) transfer or assign your account to anyone without first getting our written permission or (f) provide your username or password to any third party or allow any third party to access your account. We reserve the right to refuse, remove or change your username as may be appropriate in our sole discretion. Please note that except as set forth in this Agreement, subscriptions are only available for single users.
It is your responsibility to promptly update your Registration Data to maintain its accuracy. You additionally agree to promptly notify us at email@example.com of any suspected or actual unauthorized use of your username, password, other account information or any other breach of security that you become aware of involving or relating to the Community.
VM reserves the right to monitor your usage of the Community in order to confirm your compliance with your obligations in this Agreement and protect our rights or comply with our legal obligations. You acknowledge and agree that we may suspend or terminate your account and your ability to access or participate in the Community or any portion thereof for failure to comply with this Agreement (including, but not limited to, the Rules of Conduct as set forth below) or for any other reason whatsoever. You understand that we do not conduct any independent investigation into, or attempt to verify, the Registration Data submitted by you or any subscriber or the accuracy or veracity of any Content Distributed by you or any subscriber. VM will take reasonable precautions to protect your data from loss, misuse, unauthorized access or disclosure, alteration, or destruction.
Your subscription is for the term you selected and paid for during the registration process, including any automatic renewal terms (the “Term”) – we will not offer any partial or full reimbursements once a subscription has been processed. You may terminate this Agreement by providing us with 15 days’ prior written notice of your intent to terminate.
3. COMMUNITY CONTENT
Our Community contains or may contain, from time to time, discussion boards and groups, e-mail services, news, and other areas or methods that allow interactivity between subscriber and/or which allow feedback to be provided (together, “Interactive Areas”). “Content” means any content, information and/or materials posted, submitted, uploaded, embedded, displayed, communicated or otherwise distributed (collectively, “Distributed”) on or through the Community to Interactive Areas including, but not limited to, comments and suggestions. In addition:
(a) you grant us a non-exclusive, irrevocable, transferable, perpetual, unlimited, assignable, sub-licensable, fully paid up, royalty-free, worldwide license, to copy, display, modify, perform, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any Content that you Distribute to Interactive Areas or otherwise Distribute to us in connection with the Community, without any further consent, notice and/or compensation to you or to any third parties; and
(b) with respect to Content that you Distribute, you represent and warrant: (1) you own or otherwise have all necessary rights to the Content to grant the above license; (2) the Content is true, accurate, current and complete, and complies with this Agreement; and, (3) the Content will not cause injury to any person or entity.
VM reserves the right, but disclaims any obligation or responsibility, to: (x) refuse to post or communicate or to remove any Content from the Community that violates this Agreement and (y) identify any subscriber to third parties, and/or disclose to third parties any Content or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, but not limited to, compliance with a court order or subpoena, (ii) help to enforce this Agreement and/or (iii) protect the safety or security of any person or property, including the Community. Moreover, we retain all rights to remove any Content at any time for any reason or no reason whatsoever. If we refuse to post or communicate or have to remove any Content created by you, or block you in any capacity from the Community as a result of your actions, you will not be entitled to any refund of any subscription you have purchased.
You agree that any Content you Distribute is not being shared in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and VM in any way, and that you have no expectation of any review, compensation or consideration of any type. For avoidance of doubt, VM does not accept unsolicited materials or ideas for use or publication, and is not responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted to the Community. Should you send any unsolicited materials or ideas, you are waiving any claim against VM and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea you sent.
You are and shall remain solely responsible for any Content you Distribute on or through the Community and for the consequences of submitting and posting same. We have no duty to monitor the Community and do not have control over Content. As a result, we cannot guarantee the veracity or accuracy of Content Distributed by other subscribers. You should be skeptical about information provided by others, and you acknowledge that the use of or reliance on any Content posted in the Community is at your own risk. VM is not responsible for, and does not endorse, the opinions, advice or recommendations made by any subscriber and specifically disclaims any and all liability in connection therewith. VM owes you no obligation, and therefore may refuse to post, deliver, remove, modify or otherwise use or take any action with respect to any Content. WE ARE NOT RESPONSIBLE FOR ANOTHER SUBSCRIBER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST IN ANY COMMUNITY FORUM(S). You agree to comply with any additional rules which may, from time to time, be issued at particular sections of the Interactive Areas or with respect to Content.
4. USE OF COMPANY CONTENT AND THE COMMUNITY
(a) Vinous exercises the following with respect to Company Content (defined below) and the Community:
(i) Retention of Rights
All rights, information, materials, functions, services, software and other content contained in the Community excluding user Content, including, but not limited to, articles, reviews, photographs, videos, logos, guides, audio clips, directories and source code (as well as their selection and arrangement) (collectively, “Company Content”) are our copyrighted property or the copyrighted property of our licensors. All trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may delete Company Content or features at any time, in any way, in our sole discretion, and even if our doing so affects the Distribution of your Content.
You may access the Community as it may exist and be available on any given day and we have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue the Community, partially or entirely, or change and modify prices for all or part of the services provided for you or for all our users in our sole discretion, with or without prior notice to you. For avoidance of doubt, we have no obligation to store, maintain or provide you a copy of any Content that you or other users provide when participating in the Community.
The choice of the Company Content made available on the Community at any given time is at the sole discretion of Vinous, and may change from time to time without notice.
(ii) Limitations on Subscriber Usage
Except as set forth in our Vinous Pro subscription and Vinous Enterprise License terms, detailed in Subsections 4(b)(iv) and Section 5, you may not copy, display, modify, perform, prepare derivative works of, distribute, publish or commercialize any Company Content from the Community in any way (including, but not limited to, scores alone). Notwithstanding the foregoing, where the Community is configured to enable the download of particular Company Content, you may download one (1) copy of such Company Content to a single computer for your strictly personal, non-commercial use; provided, however that you shall: (a) keep intact all copyright and other proprietary notices, (b) make no modifications to the Company Content, and (c) not use the Company Content in a manner that suggests an association with us in any capacity. All rights not expressly granted are expressly reserved, and no other use is permitted without the prior written permission of VM. The permitted use of Company Content described in this Agreement is contingent on your complete compliance with this Agreement.
You may not sublicense your rights to Company Content under this Agreement or your subscription to any third party including, but not limited to, digital or mobile application creators, data aggregator sites and other similar sites.
You must have a Vinous Pro Subscription to use any Company Content in any commercial manner, including, but not limited to, publishing scores alone, subject to the Vinous Pro User Terms in Section 5. Furthermore, you may not copy, display, modify, perform, prepare derivative works of, distribute, publish or commercialize, digitally or in print, any portion of Company Content, including scores alone, on behalf of any digital applications, data aggregators or media sites, or use any portion of Company Content within any algorithmic ratings system, without prior written permission from Vinous.
In connection with his, her or its participation in the Community, you agree to abide by the Rules of Conduct set forth in Section 7 below. Additionally, you agree not to: (a) restrict or inhibit any other user from participating in the Community, including, without limitation, by means of “hacking” or defacing any portion of the Community, (b) use the Community (or any portion thereof) for any unlawful purpose, (c) express or imply that any statements it makes are endorsed by us, (d) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Community, (e) “frame” or “mirror” any part of the Community without our prior written authorization, (f) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Community or to collect or copy Company Content or (g) harvest or collect information about the Community’s users without our express written consent.
Subscriptions are subject to a Single User License wherein sharing access to your account with others is a violation of this Agreement and is grounds for immediate termination of your subscription, without a full or partial refund of your subscription fee. Each subscription you obtain provides access to the Community through a single account on any one personal computer or a mobile electronic device that provides access to the Internet (“Device”). You may not make concurrent or simultaneous use of an account on more than one Device at any one time. If you want to access the Community on more than one Device at the same time, you will need to obtain an additional subscription for each concurrent usage.
Any violation of this Agreement or use of the Company Content beyond what is specifically permitted in this Agreement is grounds for immediate termination of your subscription without notice and without a right of refund of your subscription fee, and may constitute an infringement of our intellectual property rights.
(b) Subscription options are as follows:
(i) Vinous Mobile (iOS and Android App-Only): Unlimited access to all areas of the Vinous iOS and Android Apps including to the portion of reviews and articles that Vinous publishes to the App, Vintage Charts, Grape Guide and other features of the Apps; Wine-Searcher listings.
-$7.99 for a 1 month term; renewed automatically
-$20.99 for a 3 month term; renewed automatically
-$35.99 for a 6 month term; renewed automatically
-$59.99 for a 1 year term; renewed automatically
-Single user license
-May be purchased as a gift
-For avoidance of doubt, this subscription does not provide unlimited access to content published only to the website, such as Multimedia, Maps, Events, Your Say, Vinous Table articles, notwithstanding links from the app to the website of such content.
(ii) Vinous Classic: Full access to vinous.com and iOS/Android Apps, integration with CellarTracker and Delectable to see Vinous content on those services, links to Wine-Searcher Pro listings (requires an active Wine-Searcher Pro subscription).
-$140 for 1 year term; renewed automatically
-Single user license
-May be purchased as a gift
(iii) Vinous Premium: Full access to vinous.com, iOS/Android Apps and priority access to Vinous events, integration with CellarTracker and Delectable to see Vinous content on those services, links to Wine-Searcher Pro listings (requires an active Wine-Searcher Pro subscription).
-$210 for a 1 year term; renewed automatically
-Single user license
-May be purchased as a gift
(iv) Vinous Pro: Full access to vinous.com, iOS/Android Apps and right to use Company Content for commercial purposes in accordance with Section 5 of this Agreement, integration with CellarTracker and Delectable to see Vinous content on those services, links to Wine-Searcher Pro listings (requires an active Wine-Searcher Pro subscription).
-1 year term; renewed automatically
-Required for readers who wish to use Vinous reviews and ratings for commercial purposes.
-Subscriber agrees to the terms specific to Vinous Pro Subscribers, as outlined in section 5 of this document, including limiting the use of Company Content to one thousand (1,000) individual tasting notes and scores at any given time (but no more than 50 reviews from any single article), as long as such use is consistent with the terms of this Agreement.
- $200 annually for one single user licenses; $100 annually for each additional user.
- Subscription may only be used in one country, or if within the US, one state.
- Each distributor or entity with a different license number within the same family group in the same state must have a separate subscription.
- Vinous Pro subscribers may purchase a Vinous Enterprise License that is a customizable license for those who require the use of Company Content further to the allowances under the Vinous Pro Subscriber Terms as outlined in Section 5, for example, additional reviews or data services, such as access to the Vinous API.
-Contact us at firstname.lastname@example.org to discuss specific subscription parameters and for a subscription quote.
5. VINOUS PRO SUBSCRIBER TERMS
The following terms in this Section 5 apply only to Vinous Pro Subscribers.
(a) Permitted Use of Company Content
Vinous Pro Subscribers:
(i) are permitted limited use the Company Content on their website, in blogs and on flyers and promotional materials, solely in connection with the sale or distribution of wine, and solely as permitted by this Agreement.
(ii) are limited in their use of Company Content to up to one thousand (1,000) individual tasting notes and scores from the Company Content at any given time (but no more than 50 reviews from any single article). Any retention of a review or score, whether through a public facing website or in internal databases, is considered a use of that review or score.
(iii) may only download and use Company Content in direct connection with those wines you currently have “For Sale,” which is defined as a wine that is in stock, on order, or where there is direct means to obtain but only in connection with a legitimate offer, to sell the wine associated with the Company Content. For example, a review for a wine that was previously, but no longer, available to sell on the Vinous Pro User’s website, even if such review is for a different vintage of a wine that is available For Sale may not be used (i.e. published via a website or stored in an internal database).
(iv) may use the Company Content, including scores and tasting notes, on a single website that is directly controlled and owned by the Vinous Pro subscriber, provided, where practical, that the Vinous Pro subscriber provides a global link to vinous.com on such website. As used in this section, a “global link” is a link that is accessible from any webpage that shares the same domain name as the website in which a Vinous Pro Subscriber uses any Company Content.
(v) may not use the Company Content in blogs, websites or other information related publications or formats that provide others with general information about wines, or a particular wine, and that is unrelated to that a Vinous Pro Subscriber’s actual sale or distribution of a particular wine. Furthermore, digital applications, data aggregator sites or media sites may not copy, display, modify, perform, prepare derivative works of, distribute, publish or commercialize, digitally or in print, any portion of Company Content, including scores alone, without prior written permission from Vinous.
(vi) may not share Company Content with any third party including, but not limited to, digital or mobile application creators, data aggregator sites and other similar sites, whether through APIs or other digital form, or in printed form.
(vii) may obtain rights from us to use Company Content beyond these limitations (for example, the rights to publish more than 1000 reviews, or to share scores or Reviews via APIs) by obtaining our prior written consent as part of a customized Vinous Enterprise License.
(b) Attribution of Company Content
Your citation of the Company Content must include: (i) the name of the author of the Company Content (for example, Antonio Galloni, Galloni, A.Galloni) and the correct wine and vintage, (ii) a citation to Company (acceptable citations are Vinous, Vinous Media, Vinous.com, V) and (iii) if feasible and published in electronic format, a hyperlink to the cited material. For example, a proper citation would be: Antonio Galloni, Vinous. Standalone scores without the tasting note should be preceded or succeeded with “V”, for example V 94 or 94 V. You agree to remove or revise any such citation upon our request. You may not, at any time, distort the Company Content in any manner.
(c) Subscription Usage
Vinous Pro Subscriptions comprise Single User Licenses that must not be shared, as per sub-clause 4(a). Vinous Pro Subscribers’ use of the Community, the Company Content and this subscription is limited solely to (i) use by the Subscriber accessing the Community via a Device and (ii) use in connection with your business.
You may not use the Community except as specifically provided herein. Your subscription is personal to you and not transferable or sub-licensable to, or usable by, any other third party including, but not limited to, app developers. In particular, this Agreement does not authorize you to allow third party application developers to link to or embed Company Content that is available through your website or internal database(s) within such third party applications via APIs or any other means. In addition, access to the Community using computer programs, software or routines, or by another means, including but not limited to, Web robots, Web wanderers, crawlers or spiders, that are designed to systematically download the Content in any manner, is specifically and strictly prohibited.
By Distributing Content, you represent and warrant that the Content and your Distribution thereof conform to the Rules of Conduct (as such rules are set forth below) and other requirements of this Agreement and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Content in all manners contemplated by this Agreement.
To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the Content exist, you agree not to enforce any such rights as to us or our licensees, agents, representatives and other authorized users (including other subscribers). If you are in violation of any portion of this Section 6, VM may immediately (a) suspend or terminate your account and your ability to access or participate in the Community or any portion thereof and (b) remove any Content Distributed by you.
7. RULES OF CONDUCT
By participating in the Community, you agrees that you will not Distribute any Content that:
I. infringes or violates any right of a third party including, but not limited to: (a) copyright, patent, trademark, trade secret or other proprietary or contractual rights, (b) right of privacy or (c) any confidentiality obligation;
II. violates any law or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including, but not limited to, a Content that is or represents an attempt to engage in any criminal activity;
III. (a) is defamatory, false, abusive, harassing, threatening, or an invasion of a right of privacy of another person, (b) is bigoted, hateful, or racially or otherwise offensive, (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit or (d) otherwise harms or can reasonably be expected to harm or offend any person or entity;
IV. contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Community or any connected network, or otherwise interferes with any user’s use or enjoyment of the Community; or
V. (a) does not generally pertain to the designated topic or theme of the relevant Interactive Area(s), (b) violates any specific restrictions applicable to an Interactive Area or (c) is antisocial, disruptive, or destructive, including, but not limited to, “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
Furthermore, you agrees that you not:
A. misrepresent yourself in any way to other users;
B. collect users’ content or information, or otherwise access the Community, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior written consent;
C. unfairly interfere with any third party’s use of or access to the Community;
D. solicit login information or attempt to access an account belonging to other users;
E. use any of our copyrighted works or trademarks or any confusingly similar marks without our prior written permission;
F. advertise, promote or offer to trade any goods or services within the Community;
G. send repeated messages related to another use or make derogatory or offensive comments about any individual or entity using the Community or repeat prior postings of the same message under multiple threads or subjects; or
H. facilitate or encourage any violations of this Section 7.
VM cannot and does not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of this Agreement, and, as between the parties hereto, you hereby assume all risk of harm or injury resulting from any such lack of compliance. VM may (a) suspend or terminate your account and your ability to access or participate in the Community or any portion thereof and/or (b) remove any Content submitted by you for failure to comply with the Rules of Conduct or for any other reason whatsoever.
COMPANY CONTENT IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT OR COMPANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE COMMUNITY OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT OR COMPANY CONTENT. SUBSCRIBER HEREBY IRREVOCABLY WAIVES ANY CLAIM AGAINST US WITH RESPECT TO CONTENT OR COMPANY CONTENT. ANY USE OF THE COMMUNITY AND COMPANY CONTENT IS AT YOUR OWN RISK.
WE NEITHER WARRANT NOR REPRESENT THAT YOUR PARTICIPATION IN THE COMMUNITY WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED IN THE COMMUNITY MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.
WE DO NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO OUR SERVICES, NOR DO WE HAVE ANY OBLIGATION TO MONITOR THE USE OF OUR SERVICES BY OTHER USERS OF THE COMMUNITY; THEREFORE, WE DISCLAIM ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
WE DO NOT GUARANTEE THAT THE SERVICES WE PROVIDE WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE COMMUNITY DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
THE COMMUNITY CONTAINS FACTS, VIEWS, OPINIONS, STATEMENTS AND RECOMMENDATIONS OF THIRD PARTY INDIVIDUALS AND ORGANIZATIONS. VM DOES NOT REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED THROUGH THE COMMUNITY. ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT OR INFORMATION—INCLUDING SPECIFICALLY FOR PURCHASING DECISIONS AND/OR CELLARING ANY PARTICULAR WINE—IS AT YOUR SOLE RISK.
You are responsible for maintaining the confidentiality of your username, password and your account, as well as all activities that are authorized by anyone using your account. You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities’ respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities and costs (including, but not limited to, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim (including any third party claim): (i) arising out of your breach of this Agreement, (ii) claims arising from your access to or participation in the Community, (iii) claims arising out of your Distribution of Content; and (iv) claims arising from your account; including, but not limited to, claims for defamation, trade disparagement and intellectual property infringement and related damages.
10. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE BE LIABLE TO YOU FOR (a) any direct, indirect, incidental, EXEMPLARY, punitive, special or consequential damage, loss or expenses SUFFERED BY YOU ARISING FROM OR RELATED TO YOUR ACCESS TO OR PARTICIPATION IN THE COMMUNITY; (b) any damage, loss or expenses suffered by YOU as a result of any viruses, worms, “Trojan horses” or similar programs, denial or service attack, spamming or hacking or consequential damages; (c) any fault, inaccuracy, omission, delay or any other failure with the COMMUNITY caused by YOUR computer equipment; (d) any inaccuracies or errors in or omissions from the COMMUNITY; (e) any delays, errors or interruptions in the transmission or delivery of the COMMUNITY; (f) any inability to PARTICIPATE IN the COMMUNITY; (g) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE COMMUNITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES or (h) any loss or damage arising by any reason of non-performance.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO SUBSCRIBER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING THE COMMUNITY. MOREOVER, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.
WE MAY TERMINATE YOUR FURTHER ACCESS TO THE COMMUNITY OR CHANGE THE COMMUNITY OR DELETE CONTENT, COMPANY CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
VM has adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole and absolute discretion, of the registration of users who have violated this Agreement, including, but not limited to, by violating the Rules of Conduct set forth herein or who infringe third parties’ copyright. Any user may notify VM of his, her or its belief that another user is in violation of the Agreement. Such notice must be in writing sent to email@example.com.
To be effective, the notification must include the following:
I. A physical or electronic signature of the notifying user and contact information of the notifying user;
II. Identification of the violating party;
III. Reasonable details describing the alleged violation (for example, with respect to an allegation of copyright infringement, the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works as well as identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material); and
IV. A statement that the information in the notification is accurate under penalty of perjury.
We will give the violating party notice that we have temporarily disabled his, her or its access to the Community by either electronic mail to said party’s e-mail address in our records or by written communication sent by first-class mail to his, her or its physical address in our records. If a user receives such a notice, it may provide counter-notification in a writing to firstname.lastname@example.org that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
A. The user’s physical or electronic signature;
B. A statement from the user under the penalty of perjury responding to the alleged violation; and
C. The user’s name, physical address and telephone number.
VM will examine the notification and the counter-notification, if any, and decide in its sole and absolute discretion whether or not a violation of the Agreement has occurred. If a violation has occurred, VM may suspend or terminate the user’s access to the Community or any portion thereof and/or remove any Content submitted by the user.
AND VENUE ISSUES
ARBITRATION CLAUSE AND CLASS ACTION WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR ACCESS TO OR PARTICIPATION IN THE COMMUNITY, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this User Agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 13 will be null and void. This arbitration agreement will survive the termination of your relationship with us.
You agree that this Agreement shall be governed by the exclusive jurisdiction and venue of the state or federal courts located in the borough of Manhattan, New York, New York, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
No waiver of any provision of this Agreement by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE COMMUNITY MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
The Community is set up for users located in the United States. Therefore, those who choose to access the Community from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. VM does not make any representation that the Content available on the Community is appropriate or available for use outside the United States. You may not use www.vinous.com or any Content in violation of U.S. export laws and regulations.
If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
14. EQUITABLE RELIEF
Your breach of this Agreement may cause irreparable damage that cannot be readily remedied by monetary damages in an action at law and may also constitute an infringement of trademark rights and/or copyright rights. As such, you agree to the entry of an immediate injunction, in addition to any other remedies available at law or in equity, to stop or prevent any irreparable harm, loss or dilution as result of a breach of this Agreement.
15. CHANGES TO THIS AGREEMENT
This is the complete Agreement with respect to your use of the Community. However, the Company may occasionally update this Agreement. When we do, we will also revise the “last updated” date at the top of the copy of the Agreement posted on the Community. For changes to this Agreement we consider material, we will notify you by placing a prominent notice on the Community. Such changes will be effective when posted by us. Your continued use of the Community after the date upon which this Agreement is changed, and the changes are posted, will constitute your continued acceptance of this Agreement. Your only alternative, should you no longer wish to be bound by this Agreement, is termination of your use of the Community. No full or partial refunds will be offered in such an event.
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
17. ATTORNEYS FEES
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, VM shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which it may be entitled.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.