Terms and Conditions
Last Updated October 10, 2022
BINDING ARBITRATION & CLASS ACTION WAIVER (“ARBITRATION AGREEMENT”)
Notice of Dispute: If any party intends to seek arbitration, the party seeking arbitration must first notify the other party of the Dispute in writing. Notice should be sent to firstname.lastname@example.org, Attention: CellarEye Customer Care. The notice must include your name, address, and contact information, the facts giving rise to the dispute, and the relief requested.
Class Action Waiver: You acknowledge and agree that you and CellarEye are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and CellarEye agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the entirety of the Arbitration Agreement set forth in this Section will be deemed null and void and you and CellarEye will be deemed to have not agreed to arbitrate disputes on a class basis. Notwithstanding your and CellarEye’s agreement to resolve all Disputes through arbitration, you and CellarEye each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
Rules, Procedures, and Governing Law: The arbitration will be administered by the AAA under its Consumer Arbitration Rules and any supplementary rules then in effect (the “AAA Rules”), except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. Notwithstanding any choice of law or other provision in the Terms, you and CellarEye agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of you and CellarEye that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, that issue will be resolved under the laws of the State of California, without regard to its conflict of laws provisions.
A party who desires to initiate an arbitration must submit a written Demand for Arbitration to the AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. You can contact AAA for more information on how to commence an arbitration proceeding at www.adr.org or 1-800-778-7879.
For claims under $10,000, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. If your claim is at or above $10,000, your right to a hearing will be determined by the AAA Rules. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s applicable rules. We will reimburse those fees for claims totaling less than $10,000, unless the arbitrator finds your Dispute frivolous.
ACCESS AND USE OF THE SERVICE
Services Description: The App and the other Services are designed to provide wine cellar management, database, review and recommendation tools for wine enthusiasts and wine cellar owners and managers (“Users”). To benefit your use of the Service, you will need to submit complete and accurate information about your wine collection through the camera on your mobile device.
Recommendations. CellarEye may from time to time provide recommendations through the Service for wines and other goods and services offered for sale by a third party. If you decide to purchase any products or services (“Products”) recommended through the Services from a third party, such third party will be the “Seller of Record” for all such Products. You acknowledge that orders of Products for which a third party is the Seller of Record will be fulfilled by that third party and not by CellarEye. The third party (and not CellarEye) will be responsible for accepting or rejecting your order for Products and for processing, shipping, returns, and customer service related to your order. Products may only be rejected or returned to the third party in accordance with that third party’s policy. For additional information about any Products recommended through the Services, including shipping information, warranty and return policy, customer service information, and all other information applicable to such Products, please contact the third party.
App Provider. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each an “App Provider”). You acknowledge and agree that:
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of CellarEye.
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You must also comply with all applicable third party terms of service when using the App.
Mobile Service, Internet and Service Fees. The use of the App requires use of a mobile device and a wireless mobile data service, and your use of the Services generally requires internet access, all of which must be obtained from your mobile carrier or other third parties. Your use of the App requires you to send to and receive, at your cost, electronic communications related to the App, including without limitation, administrative messages and updates, from CellarEye, your mobile carrier, or other third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the App. You are solely responsible for obtaining all additional services and equipment necessary to access and use the Services and paying all usage and other charges associated therewith, including but not limited to, fees for wireless service and sending and receiving information to or through the Services.
Additional Acknowledgements. The Services may, at some point, include advertisements, which may be targeted to the content or information on the Services, queries made through the Services, or from other information. The types and extent of advertising on the Services are also subject to change over time. In consideration for providing you the Services, you agree that we and our third party providers and partners may place advertising on our Services or in connection with the display of content or information on the Services.
USE OF THE CELLAREYE SERVICES IS ONLY OPEN TO REGISTERED USERS OF THE CELLAREYE SERVICES AND NOT TO THE GENERAL PUBLIC.
CellarEye may, in CellarEye’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available through the Services certain content related to your wine collection (“Content”). Content may include property address information, photographs, product descriptions and reviews, pricing, and other textual, audio and/or visual content and information related to your wine collection. Any Content provided by you remains your property. However, by providing Content to CellarEye, you hereby grant CellarEye a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit the Content in any manner to the extent required to perform, promote and improve the Services.
You represent and warrant that: (i) you either are the sole and exclusive owner of all Content or you have all rights, licenses, consents and releases necessary to grant CellarEye the license to the Content as set forth above; and (ii) neither the Content, nor your submission, uploading, publishing or otherwise making available of such Content, nor CellarEye’s use of the Content as permitted herein will infringe, misappropriate or violate a third-party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
MODIFICATIONS TO THE SERVICES
CellarEye reserves the right to modify or discontinue, temporarily or permanently, the Service (or features within the Services) with or without notice. Changes we make to the Services may require you to update your Account information or the devices or systems through which you access the Services in order to continue using the Services. You agree that CellarEye will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.
You also agree not to use the App or other Services (a) to defame, abuse, harass, stalk, threaten, harvest or collect personally identifiable information, or otherwise violate the legal rights of others, including rights of privacy or publicity; (b) to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity, or state or imply that we endorse any of your statements or reviews; or (c) for any other fraudulent or unlawful purpose.
We may elect, but have no obligation, to electronically monitor the Services and may disclose any content, records, or electronic communication of any kind: (i) to satisfy any law, regulation, or government request; (ii) if such disclosure is necessary or appropriate to operate the Services; or (iii) to protect our rights or property or the rights of others.
LINKS TO THIRD PARTY SITES
The Service may include links to other sites and services that are not operated by us. We are providing these links to you only as a convenience and are not responsible for the content or links displayed on such sites. You are responsible for and assume all risk arising from your use or reliance of any third party sites.
We welcome your feedback about the App. However, you acknowledge and agree that any comments, ideas, notes, suggestions or other feedback (“Feedback”) you provide is our exclusive property, and we may use all such communications in any manner, including reproducing, disclosing, and publishing such communications, all without compensation to you. You hereby assign to CellarEye all of your right, title, and interest in your Feedback, including all intellectual property rights and related rights of authorship or attribution therein.
TERMINATION AND SUSPENSION
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT OTHER THAN AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ALL OF THE INFORMATION IT CONTAINS, THE CONTENT, AND ALL SOFTWARE, MAINTENANCE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CELLAREYE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (c) AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR CURRENCY OF ANY CONTENT, COMMUNICATIONS, SOFTWARE, LINKS OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CELLAREYE OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE WHETHER THE SERVICES ARE SUITABLE AND ADEQUATE FOR YOUR NEEDS. CELLAREYE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SITE OR ANY HYPERLINKED WEBSITE OR SERVICES.
LIMITATION OF LIABILITY
You acknowledge and agree that CellarEye or its licensors retain all right, title, and interest in the CellarEye Intellectual Property and all modifications and improvements to such intellectual property, regardless of whether any such modification or improvement is the result (in whole or in part) of any suggestions or changes made by you. CellarEye retains the exclusive right to reproduce, publish, sell, and license the CellarEye Intellectual Property. At no time during the term of this Agreement or any time thereafter shall you challenge the validity of CellarEye’s rights in the CellarEye Intellectual Property.
Ownership by Third Parties. The Services may contain intellectual property belonging to third parties. All such intellectual property is and will remain the property of its respective owners. Unless otherwise expressly set forth in this Agreement, access to the Services does not grant a right to you to copy or use any such intellectual property.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS – DMCA NOTICE
It is our policy to respond expeditiously to claims of intellectual property infringement. We will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. If you are a copyright owner or agent thereof and believe that content posted on the Site infringes upon your copyright, please submit a notice which includes the following information to the address set forth below:
- Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the picture that appears at [list location where material is located].”)
- Identify the content that is claimed to infringe upon the copyrighted work. You must provide information reasonably sufficient to enable us to locate the item on the Site. You should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
- Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email;
- If available, provide information sufficient to permit us to notify the alleged infringer (email address preferred);
- Include the following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
- Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; and
- Include the electronic or physical signature of the copyright owner or the person authorized to act on behalf of the copyright owner.
Send to: Registered Copyright Agent
101 Jefferson Drive, Suite 233P, Menlo Park, CA 94025
Email Address: email@example.com
NOTICES AND QUESTIONS
You may contact CellarEye at: CellarEye Customer Service
Email Address: firstname.lastname@example.org
101 Jefferson Drive, Suite 233P, Menlo Park, CA 94025
Attn: Customer Service
Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in any email to us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210.
© 2022 CELLAREYE, INC. All rights reserved.