Shop Terms & Conditions
SHOP (RETAILER) TERMS AND CONDITIONS
These Terms and Conditions (“Terms and Conditions”) govern your use of the “The Local Vine” e-commerce platform. By accessing and using the “The Local Vine” e-commerce platform, you (“Licensed Retailer” or “Shop”) are agreeing to be bound by these Terms and Conditions. The Local Vine and Licensed Retailer may collectively be referred to as the “Parties” and/or individually as a “Party.”
1. Definitions. Capitalized terms used in these Terms and Conditions that are not defined in this Section shall have the meaning specified elsewhere in the text of these Terms and Conditions.
“Documentation” means specifications, user manuals, system administration manuals, standard operating instructions, end-user training documentation and any other materials provided to Licensed Retailer by The Local Vine or a The Local Vine Related Entity.
“The Local Vine Content” means: (i) on-screen layouts, product categories, product descriptions, text, graphics, images, artwork, video, sound or other tangible artistic or textual material whether or not used or provided for use for the Service, that are created by or on behalf of, owned by, licensed to and/or controlled by The Local Vine or any The Local Vine Related Entity or provided by The Local Vine or any The Local Vine Related Entity in connection with the Service; (ii) any materials, including without limitation, Software and other software and copyrightable works of any nature, that The Local Vine or any The Local Vine Related Entity provides in connection with the Service, including Documentation; and (iii) any and all technology, HTML formatting code, source and object code, programming code and software, including Software, as well as all text, images, video, audio, and other data, products, services, advertisements, promotions, URLs, keywords and other navigational elements, links, pointers, and any modifications, improvements, expansions, extensions, upgrades, updates, enhancements and replacements provided by The Local Vine or any The Local Vine Related Entity in connection with the Service or otherwise. For the avoidance of doubt, it is expressly agreed and understood that articles and other content created by or on behalf of The Local Vine or any The Local Vine Related Entity during the Term for use with the Service or Software shall be deemed The Local Vine Content, but excluding, in any case, any Licensed Retailer Content and Licensed Retailer Marks that may be contained in such articles or other content.
“The Local Vine Data” means the information collected by The Local Vine from and about Service Users when they use the Service.
“The Local Vine Marks” means all trade names, trademarks, service marks, logos, trade dress, and other similar indicia of origin owned by or licensed to and/or controlled by The Local Vine or its Related Entities (other than the Licensed Retailer Marks) and the goodwill associated therewith.
“Intellectual Property” means intellectual property regardless of form, including any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, software development tools, trade names, trademarks, service marks, logos, trade dress and other similar indicia of origin, trade secrets, know-how, processes, methodologies, templates, frameworks, algorithms, software code, databases, creative content, works of authorship, and other materials, and all intellectual property rights therein.
“Law” means any statute, law, rule, ordinance, regulation, administrative regulation and the like of any city, state or local governmental agency.
“Licensed Retailer Content” means photos, text, web page layouts, graphics, images, artwork, video, sound or other tangible artistic or textual material created by or on behalf of (other than by The Local Vine or a The Local Vine Related Entity pursuant to these Terms and Conditions or in connection with the Service), owned by or licensed to (other than by The Local Vine or a The Local Vine Related Entity pursuant to these Terms and Conditions or in connection with the Service) Licensed Retailer or its Related Entities.
“Licensed Retailer Data” means (i) information regarding the Licensed Retailer’s inventory of the items available for ordering and sale through Licensed Retailer’s store(s); (ii) information regarding purchases made by Licensed Retailer Users that is collected and maintained by Licensed Retailer before and during the Term; and (iii) Licensed Retailer User PII, specifically excluding The Local Vine Data.
“Licensed Retailer Marks” means all trade names, trademarks, service marks, logos, trade dress and other similar indicia of origin owned by Licensed Retailer or its Related Entities, and the goodwill associated therewith.
“Licensed Retailer User” means any person who makes purchases from Licensed Retailer.
“Licensed Retailer User PII” means any data that can be used to identify or contact a Licensed Retailer User, such as name, street address, email address, or telephone number, provided by a Licensed Retailer User to Licensed Retailer.
“Related Entity(is)” means, in relation to either Party, any corporation or other legal entity, in whatever country organized, controlled by, controlling, or under common control with such Party. For the purposes of this definition, the term “control” means: (i) a fifty percent (50%) or greater interest in the net assets, profits or cash flow of a business organization of any nature; (ii) the power, direct or indirect, to elect or appoint fifty percent (50%) or more of the directors or trustees; or (iii) the power to direct management or governance, whether through the ownership of voting securities, by contract or otherwise.
“Service” means The Local Vine’s electronic platform and applications that are used with a computer, mobile phone or other similar device that enable consumers to order, purchase and schedule for delivery alcoholic beverages available from Licensed Retailer.
“Service User” means any Licensed Retailer User who uses the Service.
“Software” means the software program that enables the Service and all subsequent versions and iterations thereof and modifications, improvements, expansions, extensions, upgrades, updates, enhancements or replacements thereto that perform the same or similar functions on any and all platforms.
2.1 General. Subject to these Terms and Conditions and subject to the proper performance of the Licensed Retailer’s software and proper performance of and access to the components of the Service that reside with the Licensed Retailer, The Local Vine will use commercially reasonable efforts to provide the Software to Licensed Retailer, consistent with The Local Vine’s normal business practices. Licensed Retailer acknowledges and agrees that The Local Vine’s performance of its obligations under these Terms and Conditions and the performance of the Service are contingent on Licensed Retailer providing full cooperation and agreed upon access to Licensed Retailer’s personnel, Licensed Retailer Data and other information and Licensed Retailer’s materials and equipment so that The Local Vine may implement and enable the Service for Licensed Retailer.
2.2 Licensed Retailer Accounts. In order to enable the Service, Licensed Retailer shall register an account including a username and password with The Local Vine (“Licensed Retailer Account” or “LRA”). The LRA will facilitate the Licensed Retailer’s use of the Service and will allow the Licensed Retailer to provide and maintain current and accurate information pertaining to the Licensed Retailer’s account with The Local Vine. It is the Licensed Retailer’s sole responsibility to maintain a current and accurate LRA. Licensed Retailer is solely responsible for any and all activity and transactions which occur through its LRA. Licensed Retailer shall immediately notify The Local Vine of any unauthorized use or security issue related to the LRA.
2.3 Insurance. Upon The Local Vine’s request, Licensed Retailer shall provide to The Local Vine a copy of its current retail package store alcoholic beverages license and its manager of record contact information. Licensed Retailer shall maintain liquor liability insurance and general liability insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate and name The Local Vine as an additional insured on each such policy. Upon The Local Vine’s request, Licensed Retailer shall provide certificates of insurance to The Local Vine evidencing such insurance coverage and showing The Local Vine as an additional insured under such coverage. Licensed Retailer shall maintain such documentation and insurance during the Term and notify The Local Vine at least thirty (30) days prior to any cancellation of, or material change to, such documentation or insurance.
2.4 Compliance. Licensed Retailer shall actively manage its LRA, regularly maintain the content included in the LRA as well as comply with these Terms and Conditions and applicable Laws, including but not limited to Laws pertaining to alcoholic beverages. The Local Vine explicitly reserves the right to suspend access to the LRA and/or the Software and Service at any time without advance notice for Licensed Retailer’s failure to abide by the terms set forth in these Terms and Conditions or applicable Laws. In the event of any such suspension, The Local Vine shall notify Licensed Retailer and allow at least ten (10) days for Licensed Retailer to correct the failure before terminating these Terms and Conditions pursuant to Section 6.2.
2.5 Access. The Software being provided hereunder by The Local Vine to Licensed Retailer is in the form of “software as a service” and therefore no software or equipment or other materials will be physically delivered by The Local Vine to Licensed Retailer under these Terms and Conditions. Licensed Retailer may only access the Service and Software through authorized means. It is the responsibility of the Licensed Retailer to access the correct Software that is compatible with Licensed Retailer’s technology. The Local Vine is not liable in the event that Licensed Retailer does not have compatible technology or if it has downloaded the wrong version of the Software for its use. The Local Vine reserves the right to terminate these Terms and Conditions if the Licensed Retailer uses the Software with an incompatible or unauthorized device.
2.6 Support. The Parties will reasonably cooperate with each other and any of their respective suppliers and subcontractors as reasonably necessary to perform each Party’s obligations under these Terms and Conditions; provided, however, that any such support shall be consistent with all Laws regulating the sale and distribution of alcoholic beverages.
3. License Grants and Intellectual Property.
3.1 The Local Vine Licenses. Subject to these Terms and Conditions, The Local Vine hereby grants to Licensed Retailer a non-exclusive worldwide right and license during the Term (i) to access and use the Software in connection with the Service, (ii) to publicly display The Local Vine Content and The Local Vine Marks solely in connection with the Service, (iii) to market the availability of the Service as part of marketing the Licensed Retailer, and (iv) to enable Licensed Retailer Users to access and use the Service. Licensed Retailer shall not: (a) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Service, Software or The Local Vine Content in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (b) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Service, Software or The Local Vine Content, any updates, or any part thereof in any form or manner or by any means; (c) attempt to obtain any information or content from the Service, Software or The Local Vine Content using any robot, spider, scraper or other automated means for any purpose; (d) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Service, Software or The Local Vine Content; (e) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Service, Software or The Local Vine Content, any source code thereof, any updates thereto, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable Law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Service, Software or The Local Vine Content); (f) use any means to discover the trade secrets in the Service, Software or The Local Vine Content; (g) to otherwise circumvent any functionality that controls access to or otherwise protects the Service, Software or The Local Vine Content; or (h) permit any third party to engage in any of the acts described in clauses (a) through (h).
3.2 Licensed Retailer License. Subject to these Terms and Conditions, Licensed Retailer hereby grants to The Local Vine and its Related Entities a non-exclusive, royalty-free, worldwide right and license to use and reproduce Licensed Retailer Marks and Licensed Retailer Content during the Term solely for purposes of performing these Terms and Conditions.
3.3 Intellectual Property. Except as expressly stated in these Terms and Conditions, no right, title, license, or interest in either Party’s (or any of its Related Entities’) Intellectual Property is intended to be given to or acquired by the other Party (or any of its Related Entities) as a result of the execution or performance of these Terms and Conditions. Each Party expressly agrees that it and/or its Related Entities shall not take any action that shall interfere with or diminish the other Party’s (or its Related Entities’) rights in that Party’s (or its Related Parties’) Intellectual Property. Neither Party (nor their Related Entities) will register or attempt to register the Marks of the other Party (or its Related Entities) or any confusingly similar marks in any jurisdiction and will not oppose the other Party’s (or any of its Related Entities’) registration of the Marks alone or with other words or designs in any jurisdiction. If a Party (or a Related Entity) uses, registers or applies to register a mark in violation of its obligations under this section, such Party agrees, at the other Party’s request, to abandon the use of such mark and any application or registration for such mark. For the avoidance of doubt, The Local Vine Intellectual Property includes but is not limited to The Local Vine Content, The Local Vine Data, The Local Vine Marks, Documentation, Service and Software. Licensed Retailer Intellectual Property includes Licensed Retailer Content and Licensed Retailer Marks except to the extent they include or incorporate The Local Vine Intellectual Property.
3.4. Marketing and Promotion. Each Party shall use the other Party’s Marks only in the form(s) approved by the other Party, and such use shall include a notice to third parties that such trademarks are owned by the other Party. Each Party shall use the other Party’s Marks in a manner consistent with the other Party’s use of such Party’s Marks and each Party’s use of the other Party’s Marks shall at all times comply with the other Party’s trademark guidelines, as may be provided by a Party to the other Party from time to time. Each Party shall submit to the other Party for its approval, all graphics, text or other materials that use or display the other Party’s Marks prior to any use by such Party. The reviewing Party shall have the right to grant or withhold approval in such Party’s sole discretion. The Parties acknowledge and agree that: (a) there is no agreement or understanding between them that as consideration for entering into these Terms and Conditions the Licensed Retailer must market or promote a specific brand of product; (b) the marketing and promotion of any alcoholic beverages by the Licensed Retailer are not and shall not be influenced or induced by any manufacturer, importer, supplier, wholesaler or distributor; and (c) that Licensed Retailer shall at all times be free to market and promote any brands of alcoholic beverages that it determines pursuant to its unilateral business judgment.
3.5 Feedback. Any and all (i) suggestions for correction, change and modification to the Service or Software and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to The Local Vine or any The Local Vine Related Entity by Licensed Retailer (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements thereto, whether made, created or developed by The Local Vine or any The Local Vine Related Entity or otherwise relating to the Service or Software (collectively, “Revisions”), are and will remain the property of The Local Vine. Licensed Retailer acknowledges and expressly agrees that any contribution of Feedback or Revisions does not and will not give or grant Licensed Retailer any right, title or interest in the Service, Software or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of The Local Vine and its Related Entities and The Local Vine may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to Licensed Retailer and without retention by Licensed Retailer of any proprietary or other right or claim. Licensed Retailer hereby assigns to The Local Vine any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that Licensed Retailer may have in and to any and all Feedback and Revisions. At The Local Vine’s request, Licensed Retailer will execute any document, registration or filing required to give effect to the foregoing assignment.
3.6 Data. Licensed Retailer hereby grants to The Local Vine a perpetual, irrevocable, nonexclusive, royalty free, fully paid up, worldwide license, with right of sublicense through multiple tiers, to use the Licensed Retailer Data; provided The Local Vine shall not identify Licensed Retailer by name as the source of such data (except for purposes of the providing the Service) or disclose any Licensed Retailer User PII to other parties. Subject to any rights or licenses granted in these Terms and Conditions, Licensed Retailer and its Related Entities shall retain all right, title and interest in all Licensed Retailer Data. The Local Vine and its Related Entities shall retain all right, title and interest in all The Local Vine Data whether collected before, during or after the Term.
4. Integration. The Local Vine will use commercially reasonable efforts to implement the Software for Licensed Retailer and Licensed Retailer will use commercially reasonable efforts to integrate its systems with The Local Vine’s and provide access to and deliver Licensed Retailer Data.
4.1 Personnel. Each Party will be liable for all acts and omissions of their respective personnel whether or not such personnel is an employee, independent contractor or subcontractor.
4.2 Maintenance. During the Term, the Parties will, at each Party’s own expense, make commercially reasonable efforts and cooperate to ensure that the Software and Service are maintained and that the most current version of the Software is in use.
4.3 Timely Performance. The Parties acknowledge that timely performance by each of them of its respective obligations is material under these Terms and Conditions. If either Party is delayed in performing its obligations under these Terms and Conditions, any delayed performance by such Party shall be excused to the extent, but only to the extent, such delay is a result of the other Party’s delay.
5.1 Fees. Licensed Retailer shall pay the fees set forth by The Local Vine. The Local Vine may increase fees at any time, provided it gives Licensed Retailer at least thirty (30) days prior written notice. If Licensed Retailer does not agree to the increase, Licensed Retailer may terminate these Terms and Conditions upon written notice to The Local Vine with the termination effective as of the effective date of the fee increase.
5.2 Payments. Licensed Retailer authorizes The Local Vine to initiate ACH debits from Licensed Retailer’s bank account for the amount of any fees owed to The Local Vine within three (3) days of The Local Vine delivering an invoice to Licensed Retailer for such fees. Late payments are subject to a late charge equal to the lesser of (i) one and one-half percent (1½%) per month and (ii) the highest rate permitted by applicable Law.
6. Term and Termination.
6.1 Term. The Term of these Terms and Conditions begins on the date Licensed Retailer registers with The Local Vine and continues until the expiration date specified at the time of registration, if any, or termination in accordance with these Terms and Conditions. The date of any expiration or termination of these Terms and Conditions shall be the “Termination Effective Date.” Either Party may terminate these Terms and Conditions during the first twelve (12) months by providing at least ninety (90) days written notice to the other Party. Thereafter, during any renewal term, either Party may terminate these Terms and Conditions by providing at least thirty (30) days written notice to the other Party.
6.2 Termination for Cause. In addition to the termination rights set forth elsewhere in these Terms and Conditions, either Party may terminate these Terms and Conditions at any time during the Term by providing at least thirty (30) days written notice to the other Party if the other Party breaches any provision in these Terms and Conditions and fails to remedy such breach within thirty (30) days of the date of such written notice. If the operation of the Service is determined by either Party, or by a regulatory authority or court having competent jurisdiction, to violate any Law, these Terms and Conditions may be immediately terminated.
6.3 Insolvency; Cessation of Business. Either Party may terminate these Terms and Conditions immediately upon written notice to the other Party if the other Party has ceased operations in the normal course of business or has sought or is seeking to make a compromise, assignment or other arrangement for the benefit of creditors, or if the other becomes a party to bankruptcy, receivership or similar proceedings affecting its financial condition, unless such proceedings are discharged within sixty (60) days after receipt of such written notice.
6.4 Effect of Termination. Upon expiration or termination of these Terms and Conditions for any reason:
(a) Except as expressly set forth herein, all rights and licenses granted hereunder to each Party’s Intellectual Property shall terminate effective on the Termination Effective Date, and each Party shall remove the Intellectual Property of the other Party from such Party’s properties.
(b) Licensed Retailer shall make the final payment to The Local Vine in accordance with the terms of Section 5; provided, however, the final payment may be delayed for a period of sixty (60) days in order to account for any returns on sales made by Licensed Retailer through the Service to Service Users.
(c) The Local Vine’s right and license to use Licensed Retailer Data shall terminate effective on the Termination Effective Date, provided, however, that expiration or termination of these Terms and Conditions for any reason shall not affect The Local Vine’s rights or license with respect to Licensed Retailer Data already received by The Local Vine prior to the Termination Effective Date.
6.5 Survival. Upon expiration or termination of these Terms and Conditions, the following provisions shall survive: Sections 1, 3.5, 3.6 (provided that The Local Vine’s right to use Licensed Retailer Data shall not survive except as set forth in Section 6.4(c)), 6.4, 6.5, 7, 8, 9, 10, 11 and 13.
7. Confidential Information.
7.1 Definition. “Confidential Information” refers to information of any kind provided by one Party (“Discloser”) to the other (“Recipient”) prior to the date of these Terms and Conditions or at any time during the Term in connection with these Terms and Conditions. Unless excluded in writing by the Discloser, the Parties shall assume that any and all information disclosed, that is of a nature that a reasonable person would understand is confidential, is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic or other tangible form, and whether designated as confidential or unmarked, including, without limitation: business strategies and information, marketing concepts, advertising and promotional plans, technical information, network information, information regarding software applications, systems and procedures, financial information, sales data, vendor lists, customer lists and other personal information, creative concepts, specifications, designs, plans and software, that is labeled, identified or described by the Discloser thereof as confidential or that a reasonable person in a similar situation would recognize as confidential. Confidential Information specifically shall include, without limitation, the following: (i) any customer lists or customer-related information of Discloser; (ii) any sales or other financial data of Discloser; (iii) any business strategies or marketing concepts of Discloser, including without limitation, advertising, promotional and website development plans; (iv) any systems information of Discloser; and (v) any algorithms, software or related information of Discloser. The Local Vine Confidential Information includes but is not limited to The Local Vine Intellectual Property. A Party’s Confidential Information also includes notes prepared based on any of the information described in this Section 7.1, regardless of the preparer.
7.2 Exceptions. Sections 7.3, 7.4 and 7.5 do not apply to information that Recipient can demonstrate by documentary evidence: (i) is or becomes publicly known through no violation of these Terms and Conditions by the Recipient; (ii) is rightfully received from a third party without similar restriction and provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) is approved by Discloser in writing for release; (iv) is disclosed pursuant to the lawful requirement of a governmental agency, provided that if the Recipient makes such disclosure, it shall give prompt notice to the Discloser of the Confidential Information so that Discloser may seek a protective order or other appropriate remedy prior to such disclosure; or (v) is developed independently by the Recipient without use of the Discloser’s Confidential Information.
7.3 Use and Disclosure of Confidential Information. Except as otherwise permitted by and subject to the rights and licenses granted elsewhere in these Terms and Conditions, Discloser’s Confidential Information will be used solely for the purpose of performing the Service and will not, without the prior written consent of the Discloser, be voluntarily divulged, furnished or otherwise disclosed, orally or in writing, except that the Confidential Information or portions thereof may be disclosed to the employees, officers, directors, contractors and legal counsel of Recipient (collectively and as applicable, “Representatives”) with a need to know such Confidential Information for the above stated purposes and who are under confidentiality obligations no less restrictive than those set forth herein. Recipient shall use the same measures to avoid publication, disclosure or dissemination of the Confidential Information as the Recipient uses with similar information of its own which it desires not to have published, disclosed or disseminated, and in no event less than reasonable measures. Neither Party will, without the prior written consent of the other, disclose to any person, other than to those specifically authorized herein on a confidential basis, any of the terms of or other facts regarding any proposed or actual business relationship or agreement between the Parties. Each Party reserves the right, in its sole discretion and without prior notice to any other Party, to disclose its own Confidential Information to any third party for any purpose.
7.4 Return of Property. Except with respect to the Licensed Retailer Data licensed to The Local Vine hereunder, upon expiration or termination of these Terms and Conditions or at any other time requested by a Party, each Party shall turn over to the other Party all Confidential Information of the other Party in such Party’s possession or control. The Party returning such information shall also securely delete or destroy all copies of such information stored on disk, tape, or other electronic storage media, and any backup of such media and deliver certification of such destruction to the requesting Party.
7.5 Disclosure of Data. If either Party learns of an unauthorized access to or disclosure of any of the other Party’s Confidential Information related to these Terms and Conditions, it will promptly notify the other Party.
8. Representation and Warranties.
8.1 The Local Vine. The Local Vine represents and warrants to Licensed Retailer that (a) it has the required skills and experience to undertake its obligations described in these Terms and Conditions and (b) will not display on the Service any content that is commonly deemed obscene or inappropriate or that is illegal. The Local Vine further represents and warrants that: (i) no manufacturer, importer, supplier, wholesaler or distributor has influenced or induced The Local Vine to enter into these Terms and Conditions with Licensed Retailer; (ii) no manufacturer, importer, supplier, wholesaler or distributor has influenced or induced The Local Vine to cooperate with Licensed Retailer in any advertising or marketing activities (as such decisions are made by The Local Vine in its sole discretion); and (iii) Licensed Retailer shall at all times maintain absolute discretion regarding brand selection and quantity of products to be purchased, offered for sale, sold and/or delivered by Licensed Retailer and whether to enter into these Terms and Conditions with The Local Vine.
8.2 Licensed Retailer. Licensed Retailer represents and warrants that it has the full right, power and authority pursuant to Law to enter into and to perform its obligations under these Terms and Conditions and to grant the rights and licenses set forth in these Terms and Conditions. Licensed Retailer further represents, warrants and covenants that: (i) it holds a retail license as licensed and permitted by the licensing board or authority for the city, town, county and/or state (each as applicable) in which Licensed Retailer operates its store(s) and the governmental alcohol licensing commission for the state in which such retailer operates; (ii) it shall comply with all applicable Laws pertaining to Licensed Retailer’s obligations and activities hereunder and its participation in the Service, including but not limited to taking the necessary legally required steps to verify the ages of all purchasers and persons accepting deliveries; (iii) Licensed Retailer shall at all times exercise absolute and sole discretion regarding brand selection and quantity in its purchasing and sales of alcoholic beverages, with no influence or inducement from any manufacturer, importer, supplier wholesaler or distributor; (iv) it is at all times solely responsible for controlling and managing all aspects of the sale and delivery of alcoholic beverages, including the selection and pricing of inventory, receipt and acceptance of orders, and the processing and receipt of payments; (v) any and all alcohol product purchases, sales and transportation and delivery services which are contracted through the use of the Service by and between any Service User and Licensed Retailer are solely provided, managed and offered by the Licensed Retailer and/or the Licensed Retailer’s transportation provider and not by The Local Vine or any The Local Vine Related Entity; (vi) it acknowledges and understands that The Local Vine and all The Local Vine Related Entities do not offer, provide or sell alcoholic beverages or alcohol transportation services and are not licensed alcohol transportation carriers or Licensed Retailers; (vii) it acknowledges and understands that all payments provided by Service Users to Licensed Retailer hereunder for the provision and sale of alcoholic beverages or alcohol transportation services are underwritten and processed by a third party credit card payment processor, not by The Local Vine or any The Local Vine Related Entity, and that neither The Local Vine nor any The Local Vine Related Entity accepts or processes any such payments; (viii) Licensed Retailer owns the Licensed Retailer Intellectual Property; (ix) all Licensed Retailer Content provided pursuant to these Terms and Conditions shall not infringe any Intellectual Property Right of any third party in the United States; and (x) the execution and performance of these Terms and Conditions by Licensed Retailer do not, and shall not, violate any agreements, rights or obligations between Licensed Retailer and any third party.
8.3 Mutual Acknowledgment. Neither Party intends for any promotional or marketing activity conducted hereunder to result in the exclusion, in whole or in part, of any competing products of any manufacturer, importer, supplier, wholesaler or distributor, or result in any unfair trade practices against any other retailer. Neither Party shall knowingly cause the other Party to act in violation of any Law.
9.1 The Local Vine Indemnification. The Local Vine shall defend Licensed Retailer and its Related Entities (each a “Licensed Retailer Indemnitee”) from and against any claims made or brought against a Licensed Retailer Indemnitee by a third party alleging that the Services infringe any patent, copyright, trademark, or other Intellectual Property Right, or misappropriate any trade secret of any third party (each, a “Third Party Infringement Claim”), and shall pay any damages finally awarded by a court or agreed to by The Local Vine in a settlement with respect to such Third Party Infringement Claim, and any reasonable attorney’s fees incurred in investigating or defending such Third Party Infringement Claim; provided that Licensed Retailer: (i) promptly gives written notice of the Third Party Infringement Claim to The Local Vine; (ii) gives The Local Vine sole control of the defense and settlement of the Third Party Infringement Claim (provided that The Local Vine may not agree to any settlement that imposes any liability or obligation on Licensed Retailer without Licensed Retailer’s prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provides to The Local Vine, at The Local Vine’s cost, all reasonable assistance. The Local Vine shall not have any obligation under this Section 9.1 or otherwise to the extent that a Third Party Infringement Claim arises as a result of or in connection with: (a) any Licensed Retailer Indemnitee’s use of the Software or Service other than as contemplated by these Terms and Conditions; (b) any modifications to the Software or Service made by any entity other than The Local Vine; (c) any combination of the Software or Service with any services or technologies not provided by The Local Vine; (d) Licensed Retailer’s use of the Software or Service or any portion thereof after The Local Vine has terminated these Terms and Conditions or such portion of the Software or Service in accordance with this Section 9.1; (e) Licensed Retailer’s negligence or willful misconduct; or (f) any Licensed Retailer Intellectual Property. If The Local Vine determines that the Software, Service or any part thereof is infringing or is likely to infringe any third party Intellectual Property Rights, or if as a result of any claim or litigation The Local Vine or Licensed Retailer is temporarily or permanently enjoined from licensing or using the Software, Service or any part thereof, The Local Vine may, at its option in its sole and absolute discretion: (x) promptly procure for Licensed Retailer the right to continue to use potentially infringing portion of the Software or Service as contemplated hereunder; (y) replace or modify the Software, Service, or potentially infringing portion to avoid the potential infringement; or (z) if The Local Vine determines that neither (x) nor (y) above is commercially reasonable, terminate these Terms and Conditions immediately without penalty and refund the amount of any pre-paid fees for the provision of the Software or Service after the termination date. THIS SECTION 9.1 SETS FORTH THE LOCAL VINE’S SOLE AND EXCLUSIVE LIABILITY AND THE LICENSED RETAILER INDEMNITEES’ SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9.2 Licensed Retailer Indemnification. Licensed Retailer shall defend The Local Vine and its Related Entities (each a “The Local Vine Indemnitee”) from and against any claims made or brought against a The Local Vine Indemnitee by a third party that arise out of or relate to any act or omission by Licensed Retailer or any of its Related Entities, including without limitation any breach of any of its representations or warranties set out above in these Terms and Conditions, and shall pay any damages finally awarded by a court or agreed to by Licensed Retailer in a settlement with respect to such claim, and any reasonable attorney’s fees incurred in investigating or defending such claim; provided that The Local Vine: (i) promptly gives written notice of the claim to Licensed Retailer; (ii) gives Licensed Retailer sole control of the defense and settlement of the claim (provided that Licensed Retailer may not agree to any settlement that imposes any liability or obligation on The Local Vine without The Local Vine’s prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provides to Licensed Retailer, at Licensed Retailer’s cost, all reasonable assistance.
10. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, THE LOCAL VINE CONTENT AND ANY INFORMATION, SERVICES, SOFTWARE AND INTELLECTUAL PROPERTY PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO LICENSED RETAILER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND (ALL OF WHICH ARE HEREBY DISCLAIMED), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LOCAL VINE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY OF ANY RESULTS OF ANY KIND FOR LICENSED RETAILER. THE LOCAL VINE MAY INTRODUCE LICENSED RETAILER TO THIRD PARTY DELIVERY SERVICE PROVIDERS. THE LOCAL VINE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY DELIVERY SERVICE PROVIDER AND MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF SUCH DELIVERY SERVICE PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LOCAL VINE’S, ITS RELATED ENTITIES’, AND/OR ITS OR THEIR LICENSORS’ AGGREGATE LIABILITY EXCEED THE LESSER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) THE AMOUNTS ACTUALLY PAID OR PAYABLE BY LICENSED RETAILER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LOCAL VINE, ITS RELATED ENTITIES, AND/OR ITS OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSS OF USE, DATA OR PROFITS, OR ANY OTHER DAMAGES OR LOSSES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SERVICE, THE LOCAL VINE CONTENT, AND ANY INFORMATION, SERVICES, SOFTWARE, OR INTELLECTUAL PROPERTY, PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES), OR FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF THE PROCESSING, SALE, PURCHASE, DELIVERY OR CONSUMPTION OF ALCOHOLIC BEVERAGES, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICE INITIATED OR COMPLETED BETWEEN LICENSED RETAILER AND ANY SERVICE USER, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN LICENSED RETAILER AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICE OR IS REFERRED BY THE SERVICE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE LOCAL VINE, ITS RELATED ENTITIES AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSED RETAILER EXPRESSLY WAIVES AND RELEASES THE LOCAL VINE FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO LICENSED RETAILER’S USE OF THE SERVICE, ANY SERVICES OFFERED VIA USE OF THE SERVICE, AND ANY THIRD PARTY DELIVERY SERVICE PROVIDERS. THE LOCAL VINE WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN LICENSED RETAILER AND SUCH THIRD PARTY DELIVERY SERVICE PROVIDERS.
Each party acknowledges that the foregoing limitations are an essential element of the Agreement between the Parties and that in the absence of such limitations the terms set forth in these Terms and Conditions would be substantially different.
12. Force Majeure. Neither Party will be deemed to be in default of or to have breached any provision of these Terms and Conditions as a result of any delay, failure in performance or interruption of service (except for failure to timely pay), resulting from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires or other catastrophes or occurrences which are beyond such Party’s reasonable control. Notwithstanding the foregoing, if any excusable delay or failure to perform by a Party exceeds twenty (20) days, the other Party shall have the right to terminate these Terms and Conditions, if applicable, without liability, except that Licensed Retailer will continue to be liable for payment of any fees in accordance with Section 5.
13.1 Assignment. Licensed Retailer may not assign or transfer any of its rights or obligations under these Terms and Conditions except to and among its Related Entities without the prior written consent of The Local Vine. The Local Vine may assign or delegate these Terms and Conditions or any or all of its rights and obligations under these Terms and Conditions to a Related Entity or to a successor in interest in connection with the merger, consolidation, reorganization or sale of all or substantially all of its assets or equity or that portion of its business to which these Terms and Conditions relates. Any attempted assignment or delegation in violation of this Section will be void and without effect. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
13.2 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the Laws of the Commonwealth of Massachusetts, without regard to the conflict of law principles thereof. The Parties irrevocably and unconditionally agree that any legal proceeding arising under or in connection with these Terms and Conditions, except for those seeking injunctive relief, will be brought exclusively in the state or federal court located in Boston, Massachusetts. The Parties each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such claims or disputes, and waive any objection as to inconvenient forum.
13.3 Equitable Relief. The Parties agree that a Party’s breach of the confidentiality provisions of these Terms and Conditions or infringement or violation of the other Party’s intellectual property rights, may cause irreparable damage to the other Party and that in the event of such breach, infringement or violation by a Party, the other Party shall have, in addition to any and all remedies at law, the right to seek an injunction, specific performance or other equitable relief in a court of law.
13.4 Severability. If any provision of these Terms and Conditions (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances, and the Parties shall endeavor to fulfill the intent of the severed provision to the extent permitted by applicable Law.
13.5 Notices. All notices to be given under these Terms and Conditions shall be in writing and shall be personally served, sent by certified or registered U.S. mail, return receipt requested, or by fax or email to the addresses designated by the Parties at the time Licensed Retailer registers for the Service. If receipt of such notice is refused or a Party has changed its address(es) without informing the other Party, the notice shall be deemed to have been given and received upon the seventh (7th) day following the date upon which it is first postmarked by the U.S. postal service or attempted to be delivered in person. If the notice is delivered by fax, it will be deemed to have been given and received when the sender receives confirmation of delivery. If the notice is delivered by email, it will be deemed to have been given and received when the recipient, by an email sent to the sender at the email address designated by the sender, or by a notice delivered by another method in accordance with this Section, acknowledges having received that email (with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Section).
13.6 Relationship. The Parties to these Terms and Conditions are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
13.7 Waiver; Cumulative Remedies. No failure of either Party to exercise or enforce any of its rights under these Terms and Conditions shall act as a waiver of such right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.8 Negotiated Document. The Parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of these Terms and Conditions.
13.9 Headings; “Includes” and “Including”. All captions, titles or section headings of these Terms and Conditions are for ease of reference only, shall not affect the interpretation or construction of any provisions of these Terms and Conditions, and shall not be deemed part of these Terms and Conditions. Wherever the word “including” or “include” shall appear in these Terms and Conditions, such term shall be construed to mean “including without limitation” or “include without limitation,” as the case may be.
13.10 Entire Agreement. These Terms and Conditions and the ordering document(s) completed by Licensed Retailer at the time of registration contain the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as otherwise provided herein, supersede and replace all other prior and contemporaneous agreements between the Parties regarding such subject matter whether written or oral. This Agreement may not be amended by Licensed Retailer except by an instrument in writing signed by an authorized officer of The Local Vine.