Clos Wines, Inc.
TERMS OF SERVICE
Date of Last Revision: January 2017
Clos Wines, Inc. (“Clos,” “Clos Wines,” “we,” “us,” “our”) provides its services (described below) to you through its website and related services (collectively, such services, including any new features and applications, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time without further notice. You should periodically visit this page to review the current Terms of Service so you are aware of any revision to which you are bound. If we do this, we will post the changes to these Terms of Service on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.
Services Description: The Service allows you to view, interact with and purchase wine and wine related products from wineshops. From time to time, Clos may, in its sole discretion, add or delete certain services available for purchase as part of the Service.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree and acknowledge that you may only create one account. You agree to (a) immediately notify Clos of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Clos will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: Clos reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Clos will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Clos may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Clos’ servers on your behalf. You agree that Clos has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Clos reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Clos reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to browse the Service and the Site from a mobile device and (ii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Services, you agree that we may communicate with you regarding Clos and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
User Conduct: The following are examples of the kind of content and/or use that is illegal or prohibited by Clos. Clos reserves the right to investigate and take appropriate legal action against anyone who, in Clos’ sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
Sale of Alcoholic Beverages: Clos and related wineshops do not sell alcohol to persons under the age of 21. By using this site you swear and affirm that you are over the age of 21. Clos and related wineshops make every effort to ensure that alcoholic beverages are not delivered to anyone who is under the age of 21. By using this site you are acknowledging that the person receiving a shipment of alcoholic beverages from Clos is over the age of 21. You also agree that any alcohol purchased from Clos wineshops are intended for personal consumption and not for resale. If you do not agree with these conditions of use please do not use this site. If you intentionally or unintentionally misrepresent your age in order to provide alcohol to a person under the age of 21 Clos and related wineshops will prosecute you fully to the extent allowable by law.
Title & Ownership: Title to, and ownership of, all wine passes from Clos and related wineshops to the purchaser at the warehouse and state it is purchased in and the purchaser takes all responsibility for the shipping it from the warehouse to his/her home state. By arranging for transportation of the wine, Clos is providing a service to, and acting on behalf of the purchaser. By utilizing this service from Clos, the purchaser is representing that he/she is acting in a fashion compliant with his/her local and state laws regarding the purchase, transportation and delivery of wine. The purchaser represents that he/she has obtained any required permission, paid any required fees, is working through properly licensed intermediaries where required, is legally entitled to take possession of wine and is legally entitled to take quantities ordered and once again authorizes that he/she is 21 years of age.
Fees: To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Clos information regarding your credit card or other payment instrument. You represent and warrant to Clos that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Clos the amount specified by Clos in accordance with the terms of such plan and these Terms of Service. Any fees that Clos may charge you for the Service are due immediately and are non-refundable. This no refund policy shall apply at all times, regardless of your decision to terminate your usage, our decision to terminate your usage or disruption caused to the Service for any reason whatsoever. We reserve the right to change Clos’ prices. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Clos’ net income. Clos may make promotional offers with different features and different rates to any of its users. Any Clos credits that are offered to users via the Service are not (a) redeemable for cash or cash equivalents, (b) transferrable and (c) applicable toward prior purchases. Other restrictions make apply.
Invitation/Referral Program. The Service may offer invitation/referral codes that are meant for sharing among friends and may become invalid if publicly posted via third party websites or otherwise. An invitation/referral code may be used by one user only and Clos reserves the right to suspend your account and/or revoke any and all invitation/referral credits at any time if Clos feels they were earned inappropriately.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Third Party Content & Monitoring: Any opinions, advice, statements, services, offers, events or other information or content expressed or made available on this Clos Site by third parties (including information providers and users) are those of the respective author(s) or distributor(s) and not of Clos. Clos neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on this Clos Site by anyone other than authorized Clos employees acting in their official capacities.
Apple-Enabled Software Applications
Company may offer Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Company and you acknowledge that these Terms of Service are concluded between Company and you only, and not with Apple, and that as between Company and Apple, Company, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service. Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an Apple Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service. Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Company’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Company and you acknowledge that Company, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Company as follows:
326 Van Brunt St. #2L
Brooklyn, NY 11231
Company and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enable Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enable Software as a third party beneficiary thereof.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Clos, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Clos, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Clos.
The Clos name and logos are trademarks and service marks of Clos (collectively the “Clos Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Clos. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Clos Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Clos Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Clos be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for 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 such content. You acknowledge that Clos does not pre-screen content, but that Clos and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Clos and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Clos, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Copyrights & Designated Agent For Notification of Claims of Infringement: Clos respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Clos’ Designated Agent the following information:
User Feedback: You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Clos are non-confidential and Clos will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Clos may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Clos, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
The Service may provide, or third parties may provide, links or other access to other sites, resources on the Internet and/or third party provided content such as coupons and promotional media. Because Clos has no control over such sites and resources and content and materials, you agree and acknowledge that Clos is not responsible for the availability of such external sites or resources and content and materials and does not endorse and is not responsible or liable for any content, advertising, coupons, products or other materials made available from such sites or resources. You further acknowledge and agree that Clos will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Clos is not liable for any loss or claim that you may have against any such third party.
In addition, Company is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Company is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Company enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
You agree to release, indemnify and hold Clos and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY SERVICE YOU PURCHASE USING THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE OR ANY SERVICE YOU PURCHASE USING THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rues (including the Optional Rules for Emergency Measures of Protection), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration proceedings shall be conducted before one (1) neutral arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, selected by the rules of the American Arbitration Association. The place of arbitration shall be New York, New York. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under these Terms of Service, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). EACH PARTY AGREES THAT IT WILL NOT SEEK OR OTHERWISE AGREE TO HAVE ANY OF ITS CLAIMS ARISING HEREUNDER CONSOLIDATED INTO A CLASS OR OTHERWISE PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY CLAIMS ARISING HEREUNDER.
You agree that Clos, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Clos believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Clos may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Clos may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Clos will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any merchant or other user in connection with the Service and Clos will have no liability or responsibility with respect thereto. Clos reserves the right, but has no obligation, to become involved in any way with disputes between you and any merchant or other user of the Service. In the event you have an issue and/or dispute with a product you ordered from any wineshop or other merchant using the Service, you must contact the relevant wineshop and/or merchant.
These Terms of Service constitute the entire agreement between you and Clos and govern your use of the Service, superseding any prior agreements between you and Clos with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Clos agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Delaware. The failure of Clos to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Clos, but Clos may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Questions? Concerns? Suggestions? Please contact us at [email protected] to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.