Terms and Conditions

CellarEye, Inc.

Last Updated October 10, 2022

Welcome to CellarEye! These Terms and Conditions, the Privacy Policy posted at: CellarEye’s Privacy Policy (the “Privacy Policy”), and all other terms and policies posted on cellareye.com (the “Site”) (collectively, the “Terms of Use”) govern your access to and use of the CellarEye mobile application (the “App”) and any other content, products, and services (including the App, each a “Service” and collectively, the “Services”) made available by CellarEye, Inc. or its representatives, affiliates, officers, and directors (collectively, “CellarEye” or “we” (and all of its derivations)). Please read these Terms of Use carefully as they constitute a legal agreement between you and CellarEye. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO ALL OF THESE TERMS OF USE AND ALL OTHER RULES, POLICIES, AND PROCEDURES RELATING TO THE SERVICES AND YOUR USE THEREOF THAT CELLAREYE MAY PROVIDE YOU FROM TIME TO TIME. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

As long as you comply with these Terms of Use, you have the right to download and install a copy of the App to your mobile device, and to access and use the Service, for your own personal, non-commercial use. You may not: (i) copy, modify or distribute the App for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the App or the Services to any third party; (iii) decompile, reverse-engineer, disassemble, or create derivative works of the App, the Services, or any CellarEye intellectual property; (iv) use the App or the Services for commercial purposes, or (v) use the App or the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these Terms of Use. [The Services are only intended for use in the United States.]

“You” (and all of its derivations) means you individually and any person acting as your agent, under your authority, or with your permission and, if you are accepting these Terms of Use on behalf of a company or other legal entity, that legal entity. If you are accessing the Services on behalf of an entity, you hereby agree to these Terms of Use on your behalf and on behalf of such entity. You represent and warrant that you are: (a) at least 18 years of age (or the minimum age in your jurisdiction for entering into a binding contract); and (b) capable of entering into a legally binding agreement.

PLEASE READ: THESE TERMS OF USE CONTAIN A MANDATORY ARBITRATION AGREEMENT REQUIRING ANY DISPUTE BETWEEN YOU AND CELLAREYE, SUBJECT TO LIMITED EXCEPTIONS, TO BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS AND REQUIRING YOU TO FOREGO JURY TRIALS, CLASS OR COLLECTIVE ACTIONS OR PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT FOLLOWING THE OPT-OUT PROCEDURES IN THE “BINDING ARBITRATION & CLASS ACTION WAIVER” SECTION BELOW, YOU WILL BE BOUND BY THIS ARBITRATION AGREEMENT. BY AGREEING TO THESE TERMS OF USE, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND EXPRESSLY AGREE TO THE MANDATORY ARBITRATION AGREEMENT.

BINDING ARBITRATION & CLASS ACTION WAIVER (“ARBITRATION AGREEMENT”)

CellarEye is committed to customer satisfaction, so in the event of dispute, claim, or controversy arising out of or relating to any part of these Terms of Use, or the existence, breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), please contact us at support@cellareye.com, Attention: CellarEye Customer Care and we will try to resolve your concerns through informal negotiation within 60 days from the date of the notice of Dispute is received. If we are unsuccessful after 60 days, you may pursue claims as explained in this section.

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 support@cellareye.com, 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.

Mandatory Binding Arbitration: By agreeing to these Terms of Use, You agree that any Dispute shall be finally settled by binding individual arbitration in accordance with the rules and procedures of the American Arbitration Association (“AAA”), and not in a court of law in any jurisdiction, and not in a class, representative, or consolidated action or proceeding, as further set forth below. You and CellarEye agree that one (1) arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Judgment of the award rendered by the arbitrator may be confirmed, reduced to judgment, and entered in any court of competent jurisdiction as necessary to protect CellarEye’s rights or its property or those of its agents, suppliers, and subcontractors.

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.

Changes to Arbitration Agreement: Notwithstanding the provisions of this Section, if CellarEye changes any of the terms of this Section after the date you first accepted the Terms of Use (or accepted any subsequent changes to the Terms of Use), you may reject any such change by providing CellarEye written notice of such rejection within thirty (30) days after the date such change became effective, as indicated in the “Last Updated” date above. This written notice must be provided either by email at support@cellareye.com or by mail to our registered agent for service of process. In order to be effective, the notice must include your full name, address, and signature, and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and CellarEye in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).

Opt-out procedure: You can choose to reject this Arbitration Agreement by sending us a written opt-out notice (“Opt-Out Notice”) within thirty (30) days following the date you first agree to these Terms by email to support@cellareye.com or by mail at CellarEye, Inc., c/o Legal Department, 101 Jefferson Drive, Suite 233P, Menlo Park, CA 94025. If mailed, the Opt-Out Notice must be post-marked no later than thirty (30) days following the date you first agree to these Terms of Use. To be effective, your Opt-Out Notice must contain your name, address, and signature. If you opt out of the Arbitration Agreement, all other parts of these Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.

ACCESS AND USE OF THE SERVICE

License to Use and Access Services. CellarEye grants you a nonexclusive, non-transferable, revocable, license (without right of sublicense) to access and use the Services for your personal use. Any enhancements or modifications to the Services, as well as any new features or materials added to the Services after your initial access to them, shall be subject to these Terms of Use (unless any such modified or new feature or material is accompanied by a separate agreement). All license rights granted to you under these Terms of Use will immediately terminate if you violate any of these Terms of Use.

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.

Your Registration Obligations: In order to use the Services through the App, you must register for an account with CellarEye or have an account with an App Provider (in each case your “Account”). When registering for an Account, you must: (a) provide true, accurate, and complete information; and (b) establish a username and a password. You must maintain and promptly update such information so that it is current at all times. You are responsible for keeping your Account password confidential and secured and for all activities that occur through your Account, whether or not you have authorized them. You will immediately notify us of any unauthorized use of your password or Account or any other breach of security. We will not be responsible for any loss or damage arising from your failure to comply with your responsibilities and obligations under these Terms of Use or from any activities that occur through your Account.

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:

These Terms of Use are concluded between you and CellarEye, and not with the App Provider, and that CellarEye (not the App Provider), is solely responsible for the App.
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.
In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, CellarEye will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.
The App Provider, and its subsidiaries, are third party beneficiaries of these Terms of Use as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms of Use, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your license of the App against you as a third party beneficiary thereof.

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.

MODIFICATIONS TO TERMS OF USE

We reserve the right, at our sole discretion, to change, modify or otherwise alter these Terms of Use at any time by posting a notice on the Site or by other means of electronic communication. Unless otherwise indicated, such changes will become effective immediately. It is your responsibility to review these Terms of Use periodically for changes. Your continued use of the Services following the posting or other provision of any updated Terms of Use will constitute your acceptance of such updated Terms of Use and those updated Terms of Use will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Use in effect at the time of your use.

PRIVACY

The Privacy Policy posted at CellarEye’s Privacy Policy explains how we collect, store, share, or otherwise use any personal information you provide through the Services (“Personal Data”). Our use of Personal Data will be in accordance with the Privacy Policy and you hereby grant CellarEye the right to use your Personal Data consistent with these Terms of Use, including the Privacy Policy.

Without limiting anything contained in the Privacy Policy, you hereby grant CellarEye the right to aggregate and use for CellarEye’s internal business purposes those portions of your data provided to CellarEye in connection with your use the Services (“Usage Statistics”) and to disclose the Usage Statistics to third parties for the purpose of improving CellarEye’s products and services or for CellarEye’s marketing and promotional purposes so long as the Usage Statistics are disclosed only in the aggregate, do not include confidential information, are not disclosed in a manner so that the Usage Statistics would be attributable specifically to you, or that would provide the ability to identify you. The foregoing license shall survive any termination of these Terms of Use or of your access to the App.

CONTENT

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.

YOUR CONDUCT

You are responsible for all of your activity related to the Services and may not use the Services for any purpose other than as set forth in these Terms of Use. Any conduct by you that, in our sole discretion, restricts or inhibits any other user from using or enjoying the Services will not be permitted. Without limitation of the foregoing, you will not post, transmit, or otherwise make available, through or in connection with the App or the other Services, (a) anything that could be (i) threatening, harassing, discriminatory, degrading, hateful or intimidating; (ii) defamatory, fraudulent or otherwise tortious; or (iii) obscene, indecent, pornographic or otherwise objectionable; (b) anything that could give rise to criminal or civil liability (including any material protected by copyright, trademark, trade secret, right of publicity, or any other proprietary right for which you do not have the express prior consent of the owner of such right or in violation of any contractual, fiduciary or other legal obligation), or that encourages conduct that would constitute a criminal offense; (c) any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;(d) any unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letter,” “pyramid scheme,” investment opportunity or other form of solicitation; or (e) any material, non-public information about a company or any securities or other financial instrument, without the proper authorization to do so.

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.

We retain the right at our sole discretion to deny access to anyone to this App and the other Services, at any time and for any reason, including, but not limited to, for violation of these Terms of Use.

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.

FEEDBACK

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

We reserve the right to delete or change any username or password at any time and for any reason. We may suspend or terminate your Account or your use of the Services at any time, for any reason or for no reason at all. You may terminate these Terms of Use at any time by discontinuing your use of the Services. You may delete your Account, either directly or through a request made to support@cellareye.com, but you will no longer be able to utilize the Services. Upon any termination of these Terms of Use by either you or us, the following sections will survive: “Binding Arbitration & Class Action Waiver”, “Privacy”, “Content”, “Your Conduct”, “Feedback”, “Disclaimer of Warranties”, “Limitation of Liability”, “Indemnity”, “Notices and Questions”, and “Miscellaneous”, together with all other provisions that by their plain meaning are intended to survive.

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 UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH OTHERWISE HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL CELLAREYE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE UNDER ANY THEORY OF LAW, WHETHER IN CONTRACT OR TORT, FOR DAMAGES TO YOU FOR ANY CAUSE WHATSOEVER ARISING UNDER OR RELATED TO THIS AGREEMENT, INCLUDING OUT OF THE USE OR THE INABILITY TO USE THE SERVICES, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, OR DELAY, ANY THEFT, ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF DATA, OR OTHER TANGIBLE OR INTANGIBLE LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, CELLAREYE’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT, UNDER ANY CIRCUMSTANCES, EXCEED [ONE HUNDRED DOLLARS ($100)]. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES, SOME OF THE WARRANTY DISCLAIMERS AND LIMITATIONS SET FORTH IN THESE TERMS OF USE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, CELLAREYE’S LIABILITY IS LIMITED TO, AND THE SCOPE AND DURATION OF THE WARRANTIES SET FORTH IN THESE TERMS OF USE SHALL BE, THE MINIMUM PERMITTED BY APPLICABLE LAW.

THE LIMITATIONS AND DISCLAIMERS IN THESE TERMS OF USE DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

INDEMNITY

You hereby indemnify and hold harmless CellarEye and its affiliates, suppliers, business partners, and licensors, and its and their respective employees, contractors, and agents from any and all claims, losses, damages, costs, and expenses, including reasonable attorney’s fees, arising from or related to your use or misuse of the Services or breach of these Terms of Use. You will cooperate fully as reasonably required in the defense of any such claim.

INTELLECTUAL PROPERTY

As between you and CellarEye, CellarEye owns and retains all right, title, and interest, including art work, graphics, images, screen shots, text, audiovisual and audio files, digitally downloadable files, copyrights, software, trademarks, service marks, trade dress rights, logos, product and character names, slogans, and other indicia of CellarEye or CellarEye’s licensors or third party partners, and the compilation of the foregoing and all other intellectual property rights in and to the Services (“CellarEye Intellectual Property”). You have no right to use any CellarEye Intellectual Property in any manner without the advance written permission of CellarEye. CellarEye reserves all rights not expressly granted to you in these Terms of Use.

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

CellarEye

101 Jefferson Drive, Suite 233P, Menlo Park, CA 94025

Email Address: support@cellareye.com

NOTICES AND QUESTIONS

Except as explicitly stated otherwise in these Terms of Use, (a) any notices provided by us may be made by an updated posting on the Service or by mail or email to the most recent address or email address associated with your Account; and (b) all notices under these Terms of Use must be in writing and will be deemed to have been duly given: (i) when received, if personally delivered or sent by certified or registered mail, return receipt requested; (ii) when receipt is electronically confirmed, if transmitted by e-mail; or (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service. You hereby agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

You may contact CellarEye at: CellarEye Customer Service

Email Address: support@cellareye.com

Mailing Address:

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.

MISCELLANEOUS

Severability, Non-waiver, Entire Agreement: If any provision of these Terms of Use, or any portion thereof, is found to be illegal, unenforceable, or invalid, that provision or portion will be replaced by a valid, legal, and enforceable provision that comes closest to the parties’ intent underlying the invalid, illegal, or unenforceable provision. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. For purposes of these Terms of Use: (a) the words “include,” “includes”, and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example”, “e.g.”, and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms of Use as a whole; and (e) the singular includes the plural and the plural includes the singular. No ambiguity will be construed against any party based on a claim that the party drafted the language. No failure by any party to take any action or assert any right hereunder will be deemed to be a waiver of such right and will not prevent such party from enforcing such right in the future. The waiver by a party of any of its rights or a breach in a particular instance will not be construed as a waiver of such rights or breach or of the same or different rights or breach in subsequent instances. These Terms of Use set forth the entire understanding and agreement between you and CellarEye with respect to the subject matter contained herein and supersede any other agreement, proposals, and communications, written or oral, between CellarEye and you with respect to the subject matter hereof. CellarEye will not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control.

No Joint Venture, No Derogation of Rights: No joint venture, partnership, employment, or agency relationship is created between you and CellarEye as a result of these Terms of Use or your use of the Services and neither party has any authority of any kind to bind the other in any respect. Our performance of these Terms of Use is subject to existing laws and legal process, and nothing contained herein is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by us with respect to such use.

Assignment: You may not assign your rights or obligations hereunder without CellarEye’s express prior written consent. We may assign, transfer, or delegate any of our rights and obligations hereunder without your consent. Any assignment or transfer or purported assignment or transfer in violation of this Section is null and void. These Terms of Use shall be binding upon the permitted heirs, successors, and assigns of the parties hereto.

Governing Law & Forum Choice: Your access and use of the Services and these Terms of Use shall be governed by and construed in accordance with the laws of California without reference to its conflicts of laws provisions. Except as set forth in Section 1 above, any Dispute directly or indirectly arising out of, in connection with, or related to the Services or these Terms of Use shall be brought and heard in the state or federal courts in of the Northern District of California, USA.