THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS REGARDING YOUR USE OF THE KIND OF WILD WEBSITE KINDOFWILDWINES.COM
The parties to this Agreement shall be defined as follows:
COMPANY: The Company, as the creator, operator, and publisher of the Website, makes the Website and certain Products on it available to users. Kind of Wild, Company, us, we, our, ours and other first-person pronouns will refer to the Company, as well as all employees and affiliates of the Company.
CLIENT: You, as the user of the Website, will be referred to throughout this Agreement with second-person pronouns such as you, your, yours, or as User or Client.
PARTIES: Collectively, the parties to this Agreement (the Company and Client) will be referred to as Parties.
ASSENT & ACCEPTANCE
By using the Website, you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please leave the Website immediately. The Company only agrees to provide use of this Website to you if you assent to this Agreement.
ACCESS TO THIS WEBSITE.
You must be twenty-one (21) years or older to use this Website. If you are under twenty-one (21) years of age, you are not permitted to access this Website for any reason. By using this Website (and, thus, agreeing to the Terms and Conditions) you warrant and represent that you are at least twenty-one (21) years of age. All content, offers and promotions on this Website are intended for legal use and may not be used or discussed in a manner that is illegal. As the consumer, it is your responsibility to know your local, state and federal laws regarding use. You agree that Company shall not be responsible for any liability arising from the alleged illegality of products offered to you via this website. Any governmental employee, agency, or agent must identify themselves to the operators of Company upon their entering the Website. We reserve the right to request a scan of any customer’s photo ID for age verification before shipping any item.
LICENSE TO USE WEBSITE.
The Company may provide you with certain information as a result of your use of the Website. Such information may include, but is not limited to, documentation, data, or information developed by the Company, and other materials which may assist in your use of the Website (“Company Materials”). Subject to this Agreement, the Company grants you a non-exclusive, limited, non-transferable and revocable license to use the Company Materials solely in connection with your use of the Website. The Company Materials may not be used for any other purpose, and this license terminates upon your cessation of use of the Website or Services or at the termination of this Agreement.
You agree that the Website, all content on the Website (including all designs, texts, graphics, pictures, video, information, and their selection and arrangement), and all Services provided by the Company are the exclusive property of the Company, including all copyrights, trademarks, trade secrets, patents, and other intellectual property (“Company IP”). You agree that the Company owns all right, title and interest in and to the Company IP and that you will not use the Company IP for any unlawful or infringing purpose. You agree not to reproduce or distribute the Company IP in any way, including electronically or via registration of any new trademarks, trade names, service marks or Uniform Resource Locators (URLs), without express written permission from the Company. You may not use, replicate, modify, copy, distribute, frame, reproduce, republish, download, display, post, transmit, or sell in any form or by any means, in whole or in part, any Company IP without our prior written consent, which may be withheld in our sole discretion. For so long as you are eligible to use the Website and you act in accordance with the terms of this Agreement: (i) You are granted a limited license to access and use the Website solely for your personal non-commercial use; and (ii) You are granted a limited license to access, use, download, or print a copy of any portion of the website content to which you have properly gained access solely for your personal non-commercial use. You must never download or republish any website content or Company IP on any Internet website and you must not incorporate any related information into any other database or compilation; and, any other use of the website content or Company IP is strictly prohibited. Such limited license is subject to all terms of this Agreement. Any use inconsistent with this Agreement shall result in termination of all licenses granted herein. In addition, the Company will take legal action in connection with any violation of this Agreement. Any use of the Website, Company IP, or any website content, other than as may be specifically authorized herein, without our prior written consent (which may be withheld in our sole discretion), is strictly prohibited. Such unauthorized use might also violate applicable laws, including copyright or trademark laws and communications statutes and regulations. This Agreement does not purport to transfer any license to any intellectual property right, whether by grant, estoppel, implication, or otherwise. At any time and from time to time, and without your consent, we may unilaterally revoke any license that we grant, in our sole discretion and without any notice or cause.
SALE OF GOODS/SERVICES.
The Company may offer goods or services on the Website. The Company undertakes to be as accurate as possible with all information regarding the goods and services, including product descriptions and images. However, the Company does not guarantee the accuracy or reliability of any product information, and you acknowledge and agree that you purchase such products at your own risk.
Due to restrictions of many state laws, we only ship wine to those states where direct shipment of wine to consumers is permitted by law; currently we ship to AZ, CA, CO, DC, FL, GA, IA, IL, MA, MD, ME, MI, MN, MO, NH, NC, NV, NY, OH, OR, PA, SC, TN, TX, VA, WA & WI. This list is subject to change without notice. If your state is not on this list, visit www.freethegrapes.org for more information on changing the laws in your state. In addition, each state imposes certain limitations on the amount of wine any particular resident may receive by direct shipment. Certain states also have dry areas to which alcohol cannot be shipped, so there are certain zip codes where we cannot ship. To ensure that you are able to order wine for direct shipment from our Website, please consult the specific state requirements for your state.
Wine may only be sold and delivered to individuals twenty-one (21) years or older in the United States. There must be an adult of legal age present to sign for all wine shipments. Each purchaser represents that: (a) he/she is at least of legal age; and (b) the person to whom any wine will be delivered is also of legal age. At the time of delivery, any shipment from Company containing an alcohol beverage product will require the signature of an adult possessing identification proving he or she is at least of legal age. Further U.S. law requires that no delivery shall be made to a visibly intoxicated person.
After making wine order selections and providing us with delivery information, you will see a prompt for your payment details, such as your credit card information and any promotional codes or gift cards you may have. By entering your payment information and submitting your order, you authorize us and our third-party payment processors to charge the amount of the order to your selected payment method. Payment is due upon placing your order.
RISK OF LOSS.
The risk of loss and title for all products you order passes to you upon our delivery to the carrier (such as UPS or FedEx).
As a user of the Website or Services, you may be asked to register with us. When you do so, you will choose a user identifier, which may be your email address or another term, as well as a password. You may also provide personal information, including, but not limited to, your name. You are responsible for ensuring the accuracy and security of this information. You must not share your identifying user information with any third party, and if you discover that your identifying information has been compromised, you agree to notify us. Providing false or inaccurate information or using the Website or Services to further fraud or unlawful activity is grounds for immediate termination of this Agreement.
You agree not to use the Website for any unlawful purpose, or any purpose prohibited under this clause. You agree not to use the Website in any way that could damage the Website or general business of the Company.
ASSUMPTION OF RISK.
You acknowledge and agree that any information posted on our Website is not intended to be legal advice or medical advice, and no fiduciary relationship has been created between you and the Company. The Company does not assume responsibility or liability for any advice or other information given on the Website.
If you enroll in our SMS notifications, you will receive text messages from Company containing shipment status details about your orders. Message frequency depends upon your account activity and number of purchases. SMS messaging is not available in all areas. Not all mobile devices or handsets may be supported. Company and the mobile carriers are not liable for delayed or undelivered messages. Company does not charge a separate fee for this service; however standard message and data rates may apply from your mobile carrier. Text messages sent to your mobile phone are subject to the terms and conditions of your mobile carrier. By providing your consent to participate in this service, you approve any charges imposed by your mobile carrier. Charges for text messages may appear on your mobile phone bill or be deducted from your prepaid balance. To stop receiving text messages, text STOP to +1-707-609-4296.
REVERSE ENGINEERING & SECURITY.
You agree not to undertake any of the following actions: a) Reverse engineer or attempt to reverse engineer or disassemble any code or software from or on the Website; b) Violate the security of the Website through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
The Company does not accept responsibility for the security of your account or content. You agree that your use of the Website is at your own risk.
You agree to defend and indemnify the Company and any of its affiliates (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable attorney’s fees, which may arise from or relate to your use or misuse of the Website, your breach of this Agreement, or your conduct or actions. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense, if the Company wishes.
You are strictly prohibited from using the Website for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails.
THIRD-PARTY LINKS & CONTENT.
The Company may occasionally post links to third party websites or other services. You agree that the Company is not responsible or liable for any loss or damage caused as a result of your use of any third-party services that may be linked from our Website now or in the future. The Company provides third-party links as a convenience only and does not sponsor or endorse any of these sites or their contents. Company is not responsible for the content of, and does not make any representations or warranties regarding the content or materials on, such linked third-party websites. If you decide to access or rely on information at a linked third-party website, you do so at your own risk.
Company has no control over these linked sites, all of which have separate privacy and data collection practices, independent of Company. Nonetheless, the Company seeks to protect the integrity of its Website, and therefore requests any feedback on sites to which it links, including if a specific link does not work.
MODIFICATION & VARIATION.
The Company may, from time to time and at any time without notice to you, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement.
a) To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement. You agree that your continued use of the Website after any modifications to this Agreement is a manifestation of your continued assent to this Agreement.
c) In the event that you fail to monitor any modifications to or variations of this Agreement, you agree that such failure shall be considered an affirmative waiver of your right to review the modified Agreement.
This Agreement constitutes the entire understanding between the Parties with respect to any and all use of this Website. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, regarding the use of this Website.
The Company may need to interrupt your access to the Website to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access to the Website may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
TERM, TERMINATION & SUSPENSION.
The Company may terminate this Agreement with you at any time for any reason, with or without cause. The Company specifically reserves the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material. If you have registered for an account with us, you may also terminate this Agreement at any time by contacting us and requesting termination. At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, KIND OF WILD WINES AND ITS RELATED PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, NONINFRINGEMENT, AND USEFULNESS, WITH RESPECT TO ANY SERVICE, THE WEBSITE, ANY WEBSITE CONTENT, OR ANY INFORMATION CONTAINED ON THE WEBSITE (COLLECTIVELY, “WORKS”). THE WORKS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU RELY ON THE WORKS SOLELY AT YOUR OWN RISK. WE DO NOT REPRESENT OR WARRANT THAT ANY WORKS WILL BE UNINTERRUPTED OR ERROR-FREE. THERE COULD BE DELAYS, OMISSIONS, INTERRUPTIONS, OR INACCURACIES IN THE INFORMATION OR OTHER MATERIALS THAT ARE AVAILABLE ON OR THROUGH THE WORKS. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS, INCLUDING LOSS OF DATA, RESULTING FROM YOUR DOWNLOADING OR USE OF THE WORKS. ALTHOUGH WE MAY TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES AND OTHER DESTRUCTIVE MATERIALS TO OR THROUGH THE WORKS, WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE WORKS OR MATERIALS THAT MAY BE DOWNLOADED FROM THE WORKS ARE FREE OF SUCH DESTRUCTIVE FEATURES. WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO ANY OF THE FOREGOING.
LIMITATION ON LIABILITY.
YOU DO HEREBY ACKNOWLEDGE AND AGREE THAT KIND OF WILD AND ITS RELATED PARTIES ARE NOT LIABLE FOR ANY INJURY, LIABILITY, CLAIM, LOSS, DAMAGE, EXPENSE, COST (INCLUDING ATTORNEYS FEES INCURRED AT TRIAL, ON APPEAL, OR OTHERWISE), DEBT, FINE, CHARGE, OR LIEN, WHETHER DIRECT OR INDIRECT, INCLUDING CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, LOST PROFITS, OR OTHERWISE, THAT ARISES OUT OF OR RELATES TO (A) THIS AGREEMENT, (B) YOUR USE OR INABILITY TO ACCES THE WEBSITE, (C) INABILITY TO USE THE SERVICE, (D) ANY UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSION OR DATA. YOU DO HEREBY WAIVE ANY AND ALL CLAIMS WITH RESPECT TO THE FOREGOING, WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL LIABILITY FOR ANY AND ALL CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STATUTORY, OR OTHER CLAIMS ARISING OUT OF OR RELATING TO (I) THIS AGREEMENT, (II) YOUR USE OF THE WEBSITE, OR (III) INABILITY TO USE THE SERVICE (IV) ANY UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSION OR DATA IS LIMITED TO THE SUM OF $10. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES; AND, IF ANY OF THOSE LAWS APPLY TO YOU, THEN SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
a) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
b) JURISDICTION, VENUE & CHOICE OF LAW: Through your use of the Website, you agree that the laws of the State of California shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts in Sonoma, California. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
c) ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of the following state: California. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
d) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, be assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
e) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
f) NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
g) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
h) NO AGENCY, PARTNERSHIP OR JOINT VENTURE: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
i) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
j) ELECTRONIC COMMUNICATIONS PERMITTED: We will communicate with you by email or by posting notices on the Website. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically or post on the Website satisfy any legal requirement, if any, that such communications be in writing.
k) CREDIT CARD CHARGES: Orders are by credit card only. Visa, MasterCard, and American Express are the only acceptable forms of payment.
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