EFFECTIVE DATE: JUNE 1ST, 2015
MarcianoEstate.com is owned and operated by Napa Vineland Winery, LLC (“We”, Us and “Our”). This Terms of Use Agreement (“Agreement”) governs Your use, as a visitor and/or member (collectively “You” unless specified specifically), of any website and content owned and operated by Napa Vineland Winery, LLC, including MarcianoEstate.com (collectively “Website”). YOU HAVE A DUTY TO READ THIS AGREEMENT. YOUR USE OF THE WEBSITE CONSTITUTES YOUR MANIFESTATION TO AND INTENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE EXPRESSLY PROHIBITED FROM USING THE WEBSITE AND MUST TERMINATE YOUR USE OF THE WEBSITE IMMEDIATELY.
Your Warranties, Representations and Obligations
Our Website is offered to provide information to You about Our winery and Our offerings as well as provide You with the ability to purchase listed products. You must be of legal drinking age, at least 21 years of age, with the ability to both purchase and consume alcohol, in both the country in which You reside and the country from which You are accessing this Website. If You are not, We would respectfully ask that You exit the Website as it is intended only for those of legal drinking age. By accessing this Website, You affirm that You have met these legal drinking age requirements and that any purchase is for personal consumption, not for resale.
Your use of the Website is subject to this Agreement as well as Our incorporated Privacy Policy. WE MAY CHANGE, MODIFY, AMEND, SUSPEND, TERMINATE, OR REPLACE THIS AGREEMENT FROM TIME TO TIME AND WITHIN OUR SOLE AND ABSOLUTE DISCRETION. IN THE EVENT WE CHANGE, MODIFY, AMEND, OR REPLACE THIS AGREEMENT, THE EFFECTIVE DATE, LOCATED ABOVE, WILL CHANGE. YOUR CONTINUED USE OF THE WEBSITE AFTER A CHANGE IN THE EFFECTIVE DATE OF THIS AGREEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE CHANGE, MODIFICATION, AMENDMENT, OR REPLACEMENT CONTAINED WITHIN.
By using the Website, You are representing, warranting and agreeing that You have the right, power, and legal capacity to enter into this Agreement and to accept the rights, obligations, and duties granted under its terms and conditions, including, without limitation:
You agree to comply with the terms of this Agreement in good faith.
You represent and warrant that You are not bound by or a party to any arrangement or agreement, whether contractual or otherwise, that would prohibit You from accessing or using the Website.
You will not use the Website outside of the uses specifically provided for under this Agreement.
You understand that We cannot guarantee preservation of records and may expire information or delete or otherwise destroy records without notice at Our sole discretion.
You will not use the Website in any way that violates the rights of third parties under any law, statute, regulation, ordinance or treaty, whether local, state, provincial, national or international.
You will not make any derivative works of the Website or delete or modify, in any way, any copyright, trademark, or other proprietary notices that appear on the Website.
You will not use, modify, copy, distribute, frame, reproduce, republish, download, scrape, display, post, transmit, hack, crawl, aggregate, impose a disproportionate load on or sell the Website in any form or by any means, in whole or in part, without Our prior written consent. Our prohibition on crawling and aggregation will not apply to search engines or non-commercial and publicly available archives that appropriately comply with the robots.txt file.
You will not distribute Trojan horses, viruses, malware, spyware, spam, pyramid schemes, chain letters, or any other harmful or unsolicited files or communications.
You will not harvest, scrape, or otherwise collect information about users of the Website.
You will not circumvent Our technological and security protection mechanisms.
You will not transmit unsolicited commercial email messages, or spam, through the Website.
You will not impersonate another or create multiple alias member accounts.
You further warrant that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
We do not warrant or guarantee that compliance with this Agreement will be sufficient to comply with Your obligations hereunder under applicable law or with third party rights. Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use the Website. The Website is operated in the United States, and We make no representation that Our Website or services are appropriate, lawful, or available for use in other locations. We do not offer Our Website where prohibited by law.
Your violation of any term or condition of this section or any term of this Agreement may result in the immediate termination of your member account, if any, and the disabling of Your access to the Website.
Mailing List
The Website provides You with the ability to join Our Mailing List. We collect information about You and use that information consistent with our Privacy Policy. By submitting a request to join Our Mailing List, You agree that We, Our designees and agents may contact You by any available means, including, but not limited to, by email and telephone.
Membership
While you may visit our Website and access certain information free of charge, registration of a member account is required in order to gain access to certain information and/or purchase products from the Website.
To become a Member, You must provide information, including that set forth in the Privacy Policy incorporated into this Agreement, to create a member account profile. Your member account profile contains information provided by You, and We do not endorse You or discriminate against You based upon any information provided by You or made available for population of Your profile, though We may refuse to allow Your Membership in the event we determine You have violated this Agreement, including, without limitation, the drinking age requirement. Personal profile information will be used consistent with the Privacy Policy. As a Member, You Agree to the following:
Provide us with truthful, accurate, up to date, and complete information. Members understand and agree that they have an ongoing duty to update their personal information if and when it changes.
Keep the Member account secure from unauthorized access. Members further agree that they alone are responsible for their Member account, and Members accept full responsibility for any and all use of their Member account, whether authorized or unauthorized. In the case of unauthorized access to a Member account, Member agrees to contact Us immediately. You may appoint others to act as your agent to use the Website. You understand and agree that any user that You authorize to have access to Your Member account has the capacity to contract and is Your authorized legal agent. You agree to bear the ultimate responsibility for any access to Your Member account, whether authorized or unauthorized, and You agree to hold harmless and indemnify Us for any damages that arise out of or in relation to the use of Your Member account.
We and Our designees and agents may contact You by any available means, including, but not limited to, by email and telephone.
You will not register more than one Member account and that You will not use Your Member account to interfere with or disrupt a third party’s enjoyment and use of the Website. You are expressly prohibited from selling, leasing, lending, assigning, or otherwise transferring Your Member account.
We reserve the right to restrict access to, suspend, disable, or delete your Member Account at any time, in its sole discretion, and without prior warning.
Purchase of and Payment for Products From Website
You agree to complete any accepted transaction and pay all fees and charges, including shipping, for any purchased product. You agree to pay the amount listed at checkout. You further acknowledge and agree that the products are sold as-is.
You agree to pay all applicable taxes, duties, levies or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website and/or purchase of products. All costs and fees are quoted and payable in United States Dollars and are subject to change.
All orders require a valid credit card, and all credit card transactions are handled by a third-party financial institution which receives all information in an encrypted form in order to verify and process transactions.
In the event you dispute the amount or validity of any payments made under this Agreement, You must notify Us, in writing, within ten (10) days of any such dispute. You understand that your failure to notify Us of any dispute within ten (10) days will constitute your express waiver of any claims related to the disputed payment, unless otherwise prohibited by law. You agree that You will pay all costs and expenses of collection, including legal fees, incurred by Us in the event of failure to make any payment. You further agree to forego any chargebacks, and in the event of a chargeback, agree to reimburse Us for any and all fees and costs related to that chargeback.
Shipment
Upon the confirmation of any purchase and sale transaction through the Website and Your payment of the required amount, We will send the purchased product(s) to the address indicated in Your Member account unless otherwise specified at checkout. We recommend that You purchase insurance in case of loss or damage related to the purchase of, shipment of, or receipt of any product purchased through the Website.
You are solely responsible for the shipping, including shipping fees, of wine in particular, but by placing an order You authorize Us to act on Your behalf to engage a common carrier to ship the wine or other product to You. An adult signature will be required for delivery of alcoholic beverages, namely wine. To the extent that reshipping is required, You will be responsible for any and all fees related to the same.
You may access Our Shipping Guidelines, which are hereby incorporated into this Agreement.
Refunds and Returns
We strive to provide You with the best product possible and customer satisfaction is our highest priority. If You are dissatisfied with Your order for any reason, please contact us within five (5) calendar days of the receipt of Your order by emailing Us at info@marcianoestate.com, and We can determine whether to accept a return or issue a refund, within our sole and absolute discretion. We are not responsible for and will not replace wine that is damaged by extreme weather conditions during shipment or shipping/delivery delays. Please note that Our production is extremely limited and there may be instances where We are not able to replace Your order and, in such instances, We reserve the right, within our sole and absolute discretion, to provide a different comparable wine or other product or refund Your original purchase price.
Our Website Content and Ownership
You understand and agree that We are the owner, or licensee, of all rights in and to the Website and its associated content, including but not limited to all intellectual property and any other property or proprietary rights. The Website is protected by all applicable laws, intellectual property or otherwise, including but not limited to trademark, copyright, patent and other privacy and proprietary laws. You are expressly prohibited from using the Website for any purposes not explicitly stated in this Agreement.
We are the owner of all trademark, trade name, and/or service mark rights, whether registered or under common law, of all its marks, including, without limitation, MARCIANO ESTATE.
While we make every effort to maintain the accuracy of the Website, errors related to product description, pricing and availability may occur. We apologize for any inconvenience these errors may cause, and reserve the right to correct errors and omissions without prior notice and to cancel any offered product or service in the event of an error or omission.
Our Limited License Grant to You
The Website and related content and materials, including but not limited to any text, names, marks, statistics, graphics, photos, images, sounds, music, videos, software, scripts and interactive features, as well as its associated data and services generated by Us, is the property of and licensed through Us. We grant You a limited, non-exclusive, royalty free, non-sublicensable, non-transferrable, and non-assignable license to use the Website for non-commercial, personal purposes.
We must approve, in writing, any other use by You of Our Website.
You are hereby prohibited from using Our trademarks, service marks, design marks, and logos, or any colorable imitation thereof, or any mark not owned or licensed by You, including, without limitation the terms “Marciano Estate” or the logo, as an indicator of source, as a part of a domain name, or in any way that is likely to cause confusion without Our prior written consent.
User Generated Content and Your License to Us
By submitting User Generated Content to the Website, including specifically as part of any Comments in the Mailing List or otherwise via correspondence to Us, You grant Us a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to access, analyze, and interpret Your User Generated Content for the customary and intended purposes of the Website and any purpose related thereto, including, without limitation, to reproduce, prepare derivative works, distribute copies, perform, display, and use any of the User Generated Content in the Website, consistent with the terms of the Privacy Policy. These purposes may include, but are not limited to, providing You or third parties with the Website or its associated products and services, improve the Website and/or develop new features, measure usage of the Website, and publish the User Generated Content online or offline. You agree to waive all moral rights in and to Your User Generated Content across the world, whether You have or have not asserted moral rights in or to Your User Generated Content. By submitting User Generated Content to the Website, You further agree to waive all rights of publicity or privacy with respect to the User Generated Content submitted.
You acknowledge and agree that any feedback submitted to Us, including, but not limited to, any intellectual property or other proprietary information contained within that feedback, will become Our exclusive property. You agree to assign all right and title in or to any and all feedback that You submit to Us and execute any and all documents necessary to assign Your rights to any and all feedback to Us upon Our request, including but not limited to any documents necessary to perfect Our rights in and to intellectual property or proprietary rights.
Disclaimer and Limitation of Liability
You acknowledge and agree that not all content contained within the Website will be considered a representation to reasonably be relied upon and nothing within the Website will be construed to create a duty of care in Us or a warranty of any kind. You acknowledge and agree that We take no responsibility for, are not obligated to monitor and cannot be held liable for any User Generated Content, information or websites linked to or through the Website, information sent to Us by third parties and information intercepted by third parties. You agree to hold Us harmless for any and all inaccuracies, omissions, errors, loss of data, corruption of data, failure of hardware, failure and/or misuse of the Website.
You acknowledge and agree that We do not own or control such third parties, including without limitation third party service and product providers and payment processors and will not be held liable for any claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys fees, arising out of or in relation to your use of such third party services and products or payment processing. You understand and agree that any purchase made in on the Website may be processed by and shipped by someone other than Us. You further understand and agree that any promotion offered by Us may be administered by someone other than Us. You are advised to read the terms of use agreement of any such third party and only use or participate if you agree to such terms.
WE PROVIDE THE WEBSITE ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY. YOU ACKNOWLEDGE AND AGREE THAT YOU USE THE WEBSITE AT YOUR OWN RISK AND THAT WE WILL NOT BE HELD LIABLE FOR ANY DEFECTS, ERRORS, OMISSIONS, BUGS, OR DOWNTIME. ANY ATTEMPT BY US TO MODIFY THE WEBSITE WILL NOT BE DEEMED TO BE A WAIVER OF THIS LIMITATION OF LIABILITY. WE WILL NOT BE HELD LIABLE FOR ANY THIRD PARTY USER GENERATED CONTENT CONTAINED WITHIN THE WEBSITE, ANY THIRD PARTY LINKS OR ADVERTISING ACCESSIBLE THROUGH THE WEBSITE.
WE WILL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, SPECIAL DAMAGES, EXEMPLARY DAMAGES, INDIRECT DAMAGES, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, OR LOST INFORMATION ARISING OUT OF THE USE, WHETHER PROPER OR IMPROPER, OF THE WEBSITE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE DO NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY DATA. YOU BEAR THE SOLE RESPONSIBILITY TO PROTECT AND BACKUP YOUR OWN DATA, NETWORK, HARDWARE, SYSTEMS, SERVERS, SOFTWARE, COMPUTERS, PHONES, AND SECURITY.
UNDER ANY CIRCUMSTANCES, YOU ACKNOWLEDGE AND AGREE THAT OUR MAXIMUM LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THAT YOU PAID FOR USE OF THE WEBSITE, AND IN THE EVENT OF A PRODUCT PURCHASED, THE PRICE OF THAT PURCHASED PRODUCT. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS LISTED IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification
You agree to indemnify, hold harmless, and defend Us, our officers, members, employees, agents, and directors from and against any and all claims, demands, causes of action, debts, liabilities, damages, costs, or expenses, including costs and reasonable attorneys fees, arising out of or in relation to Your use of the Website, Your violation of a term or provision of this Agreement, or Your violation of the rights of a third party. You agree that your obligation to hold harmless, defend, and indemnify Us will survive the termination or failure of this Agreement and Your use of the Website. You acknowledge and agree that Your obligation to defend Us will not provide you with the right to control Our defense, and You expressly agree that We have the right to direct and control Our defense regardless of Your obligation to defend Us.
Assignment
You are expressly prohibited from assigning Your rights or obligations under this Agreement without Our prior written consent. We may assign Our rights or obligations under this Agreement at any time.
Integration
This Agreement, including the Privacy Policy incorporated herein, constitutes the entire agreement between the You and Us relating to the subject matter of this Agreement and hereby supersedes all prior agreements, statements, or representations. You may not modify this Agreement without a prior writing signed by You and Us.
Choice of Laws and Resolution of Disputes
This Agreement will be interpreted under and governed by the laws of the State of California without giving effect to any conflicts of laws principles. You agree that any claim or dispute that you may have against Us will be exclusively resolved through arbitration.
The Parties agree that any and all claims or controversies whatsoever (whether arising in tort or contract and whether arising under statute or common law) brought by either hereto arising out of or in any way relating to this Agreement will be submitted to binding arbitration in Los Angeles County, California, before a sole arbitrator selected from Judicial Arbitration and Mediation Services, Inc., or its successor (“JAMS”), pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. If JAMS is no longer able to supply the arbitrator, such arbitrator will be selected from the American Arbitration Association, and such arbitration will be conducted in accordance with the provisions of California Code of Civil Procedure §§ 1280 et seq. as the exclusive forum for the resolution of such dispute. The arbitrator will follow any applicable federal law and California state law (with respect to all matters of substantive law) in rendering an award. At the conclusion of the arbitration, the Arbitrator will issue a written decision that sets forth the essential findings and conclusions upon which the Arbitrator’s award or decision is based. Any award or relief granted by the Arbitrator hereunder will be final and binding on the Parties hereto and may be enforced by any court of competent jurisdiction. The Parties expressly acknowledge and agree that they are hereby waiving any rights to trial by jury. The Parties further agree that in any proceeding to enforce the terms of this Agreement, the prevailing Party will be entitled to its or his or her reasonable attorneys’ fees and costs, including, without limitation, the costs of the arbitrator, the arbitration proceeding and any proceeding in court to confirm or to vacate an arbitration award, incurred by it or him or her in connection with resolution of the dispute in addition to any other relief granted.
THIS CLAUSE WILL NOT PRECLUDE THE PARTIES FROM SEEKING PROVISIONAL REMEDIES, INCLUDING INJUNCTIVE RELIEF FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, (WITH RESPECT TO ALL MATTERS OF SUBSTANTIVE LAW) IN RENDERING AN AWARD. ANY SUCH PROVISIONAL REMEDY SOUGHT WILL BE EXCLUSIVELY SOUGHT IN AND DECIDED BY A COURT OF COMPETENT JURISDICTION LOCATED IN LOS ANGELES COUNTY, CALIFORNIA OR THE FEDERAL DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA.
We may, but are not obligated to, participate in any dispute between users. IF YOU HAVE A DISPUTE WITH ANOTHER USER, YOU RELEASE US FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES, KNOWN OR UNKNOWN. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
No Waiver
No waiver of rights under this Agreement by either party will be recognized unless made in writing and signed by the party to be charged. This Agreement is solely between Us and You and will not confer any rights or remedies upon any third party, including third party beneficiaries. A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.
Claim Limitations
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED UNDER THIS AGREEMENT MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUED. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.
YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONTEARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Term
This Agreement remains in full force and effect, unless stated otherwise elsewhere in this Agreement, as long as you use the Website. Notwithstanding the above, We may, with or without notice, remove content, suspend a Member’s account privileges, or delete a Member account.
COPPA Compliance
The Website is not directed to persons under the age of twenty-one (21) and We will not knowingly collect personally identifiable information from children under the age of eighteen (13). If We inadvertently collect personally identifiable information, We will delete the personally identifiable information in accordance with its security protocols, upon notice.
Notice to California Users
Under California Civil Code Section 1789.3, users of the Website from California are entitled to the following specific consumer rights notice to The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, which may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at (800) 326-2297 or (916) 322-1700.
Notice
Any notice under this Agreement or other contact must be sent via certified mail to Napa Vineland Winery, LLC, 1241 Adams Street, #1125, St. Helena, CA 94574, with a copy via email to: info@marcianoestate.com.
The Website and its associated content and services are © 2015 Napa Vineland Winery, LLC. All rights reserved.
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