Effective Date: July 01, 2015
Thank you for using the services offered on the Pure Vino website available at: http://www.purevino.com (the "Services"). Pure Vino ("Pure Vino," "we," "our," or "us") has adopted the following terms of service governing your use of the Services, INCLUDING THE MANDATORY ARBITRATION CLAUSE IN SECTION 11 (the "Terms").
1. Eligibility to Use the Services
Compliance with Laws. You are responsible for complying with all laws and regulations in the country in which you live when you access and use the Services. You agree to use the Services only in compliance with these Terms and applicable law, and in a manner that does not violate our legal rights or those of any third party.
Age Requirements. The Services are not intended for users under the age of 21 years of age. By accessing or using the Services, you represent that you are at least 21 years of age.
2. Pure Vino Account
In creating an account, you represent to us that all information provided to us in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. You agree to notify us immediately of any unauthorized use of your account by contacting us at the information provided below. You should also immediately change your password.
3. Our Content and Your License
Ownership of Our Content. We are the sole and exclusive copyright owners of the Services and our content, including, but not limited to, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, reports and other usage-related data in connection with activities associated with your account and all other elements and components of the Services excluding third party content ("Our Content"). We also exclusively own the copyrights, trademarks, service marks, logos, trade names, trade dress and other intellectual and proprietary rights throughout the world (the "IP Rights") associated with the Services and Our Content, which may be protected by copyright, patent, trademark and other applicable intellectual property and proprietary rights and laws. You acknowledge that the Services contain original works that have been developed, compiled, prepared, revised, selected, and arranged by us and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of us and such others. You agree to protect our proprietary rights and the proprietary rights of all others having rights in the Services during and after the term of this agreement. To the fullest extent permitted by applicable law, we neither warrant nor represent that your use of materials displayed on the Services will not infringe rights of third parties not owned by or affiliated with us. You agree to immediately notify us upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, intellectual, statutory, or common law rights by contacting us using the information below.
Your License to Our Content. We grant you a nonexclusive, nontransferable, revocable, limited license to view, copy, print and distribute Our Content only for your personal, noncommercial use; however, you may not remove or obscure any copyright notice, trademark notice, or other proprietary rights notices displayed on, or in conjunction with, Our Content.
Any violation by you of the license provisions contained in this section may result in the immediate termination of your right to use the Services, as well as potential liability for copyright or other IP Rights infringement depending on the circumstances.
4. User Feedback/Submissions
If you choose to provide feedback, comments or suggestions for improvements to the Services or otherwise (in written or oral form) ("Feedback"), you acknowledge and agree that all Feedback will be the sole and exclusive property of Pure Vino and you hereby irrevocably assign to Pure Vino and agree to irrevocably assign to Pure Vino all of your right, title, and interest in and to all Feedback, including any intellectual property rights therein. If you submit Feedback, we may use your feedback or suggestions without obligation to you.
5. Restrictions on Use
Without limiting the generality of these Terms, in using the Services, you specifically agree not to engage in any activity that, in our sole discretion:
- Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
- Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
- Is illegal, or violates any federal, state, or local law or regulation;
- Attempts to impersonate another person or entity;
- Is commercial in nature, including but not limited to spam, surveys, contests, pyramid schemes, or other advertising materials;
- Falsely states, misrepresents, or conceals your affiliation with another person or entity;
- Accesses or uses the account of another user without permission;
- Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
- Interferes with, disrupts, or destroys the functionality or use of any features of the Services or the servers or networks connected to the Services;
- "Hacks" or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
- Decompiles, reverse engineers, disassembles or otherwise attempts to derive source code from the Services;
- Removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of, the Services;
- Violates the restrictions in any robot exclusion headers on the Services, if any, or bypasses or circumvents other measures employed to prevent or limit access;
- Collects, accesses, or stores personal or private information about other users;
- Modifies, copies, scrapes or crawls, displays, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercialize any rights to the Services or Our Content; or
- Attempts to do any of the foregoing.
If you believe content on the Services violates the above restrictions, please contact us via the information provided below.
You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Services for violations of the Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with the Terms and to comply with applicable law or the order or requirement of legal process, a court, consent decree, administrative agency or other governmental body.
6. Third Party Content, Links, and Advertisements
7. Modifications to the Services
We may charge a fee for parts of the Services that may have been previously provided at no charge, or we may modify, suspend or discontinue all or any part of the Services, temporarily or permanently, at any time. Under no circumstances will we be held liable for any damages due to such interruptions or lack of availability. Upgrades or updates of the Services may be made available from time to time. We do this to improve the quality of the Services that we provide to you and other users. You may be required to install certain upgrades or updates to the software in order to continue to access or use the Services, or portions thereof (including upgrades or updates designed to correct issues with the Services). Any updates or upgrades provided to you by us under the Terms shall be considered part of the Services.
8. Disclaimer of Warranties, Limitation of Liability, and Indemnification
A. Disclaimer of Warranties. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PURE VINO, AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS ("PURE VINO PARTIES") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE OF THEM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PURE VINO PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SERVICES HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE, THAT YOU WILL OBTAIN ANY SPECIFIC RESULTS THROUGH USE OF THE SERVICES, OR THAT THE SERVICE’S CONTENT IS ACCURATE OR COMPLETE. THE PURE VINO PARTIES ASSUME NO RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY, (VI) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SERVICES AND/OR (VII) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
Some states and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages and to the extent you are a consumer the limitations or exclusions in this section may not apply to you.
C. Indemnification. You agree to indemnify, defend, and hold harmless the Pure Vino Parties from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by us arising as a result of, or in connection with: (i) your unauthorized use of the Services, or products or services included or advertised in the Services; (ii) your access to and use of the Services; (iii) your violation of any rights of another party; or (iv) your breach of these Terms. We retain the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. Termination of Your Access to the Services
You can terminate your use of the Services at any time by ceasing further use of the Services.
We may terminate your use of the Services and deny you access to the Services in our sole discretion for any reason or no reason, including your violation of these Terms. You agree that any termination of your access to the Services may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and/or bar any further access to your account or the Services. If you use the Services in violation of these Terms, we may, in our sole discretion, retain all data collected from your use of the Services. You agree that we shall not be liable to you or any third party for the discontinuation or termination of your access to the Services.
10. Changes to the Terms
We may, at any time and for any reason make changes to the Terms. We may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of the Terms will be posted on the Services and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Services or via email. If you continue to use the Services after the changes become effective, then you shall be deemed to have accepted those changes. If you don’t agree to these changes, you must end your relationship with us by ceasing to use the Services. If we update or upgrade the Services, you may be required to accept the most recent version of the Terms to access the updated or upgraded Services.
11. Dispute Resolution and Binding Arbitration.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. In order to expedite and control the cost of disputes, you and we agree that any legal or equitable claim arising out of or relating in any way to your use of the Services or these Terms, and the formation, validity, enforceability, scope, or applicability of the Terms, including this Section (referred to as a "Claim") will be resolved as follows:
11.1 Informal Resolution. We will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding (except for Claims described in Section 11.4 below) for at least 30 days after one of us notifies the other of a Claim in writing. Notice of the Claim will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You will send your notice by email to firstname.lastname@example.org AND to the address listed directly below. We will send your notice by email to the email address associated with your account.
Attn: Legal Department
3019 Alvin Devane Blvd., Suite 560
Austin, TX 78741
11.2 Formal Resolution. Except as provided in Section 11.4, if we cannot resolve a Claim informally, any Claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated available at www.jamsadr.com or by calling JAMS at 1-800-352-5267 (referred to as the "JAMS Rules") and under the rules set forth in these Terms. If there is a conflict between JAMS Rules and the rules set forth in the Terms, the rules set forth in the Terms will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state’s law. We shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney's fees and expert witness costs unless Pure Vino is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the JAMS Rules will govern payment of filing fees and arbitration fees. The arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration.
11.3 Special Rules. In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you and we agree that the JAMS Class Action Procedures do not apply to our arbitration. A court may sever any portion of this Section that it finds to be unenforceable, except for the prohibition on class, representative and private attorney general arbitration.
11.4 Exceptions. Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Service, including disputes involving a violation of the Communications Act of 1934, 47 U.S.C. § 605, or the Digital Millennium Copyright Act, 17 U.S.C. § 1201, or the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, or any other statement or law governing theft of service, may be decided only by a court of competent jurisdiction. You may also assert an individual action in small claims court in lieu of arbitration.
11.5 Right to Opt Out. You have the right to opt-out and not be bound by the binding arbitration requirement by sending written notice of your decision to opt-out to email@example.com. The notice must be sent within 30 days of the date you register for the Services if you are a registered user, or within 30 days of your first use of the Services, if you are not registered. If you opt-out, we also will not be bound by the requirement.
11.6 Changes to this Section. We will provide 30 days’ notice of any changes to this Section. Changes will become effective on the 30th day, and will apply prospectively only to any claims arising after the 30th day.
12. General Provisions
Interpretation. The section and subject headings in these Terms are included for reference only and shall not be used to interpret any provisions of these Terms.
Governing Law/Waiver. These Terms are governed exclusively by the laws of the State of Delaware without any regard to its conflict of law.
Statute of Limitations. Regardless of any statute or law to the contrary or the applicable dispute resolution process, an informal complaint pertaining to any Claim or cause of action arising out of or related to use of the Service or under the Terms must be filed with us within one (1) year after such Claim or cause of action arose or be forever barred. For Claims pursuant to the exceptions identified in Section 11.4, these Claims must be filed with the appropriate court within three (3) years after such claim or cause of action arose or be forever barred.
Severability. If any provision of these Terms is deemed unlawful, invalid, or unenforceable by a judicial court for any reason, then that provision shall be deemed severed from these Terms, and the remainder of the Terms shall continue in full force and effect.
Linking and Framing. You may not frame the Services. You may link to the Services, provided that you acknowledge and agree that you will not link the Services to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Services effective immediately.
13. Contact Us
If you have any questions or concerns with respect to these Terms or the Services, please contact us at firstname.lastname@example.org.