Use Agreement
October 13, 2004 Welcome to E. & J. Gallo Winery's Distributor Network Services Web Site (the "Site"). To use the Site, you must first accept these terms and conditions by checking the acceptance at the end. Also, by using this Site, you indicate your acceptance of these terms. The terms "you" or "your" refer to the individual(s) accessing the Site and the distributor on whose behalf those individual(s) are doing so. You may review this Use Agreement at any time by clicking on the "Use Agreement" link appearing in one or more pages in the Site. 1. This Use Agreement states the terms and conditions of your use of the Site. Through the Site, E. & J. Gallo Winery ("Winery") is making available to you interactive computer services via compatible equipment that can connect to the Site. These services may include, without limitation: (a) a distributor "Brand Central" that provides information on Winery products and Winery's advertising and promotional plans; and (b) an ordering system that allows you to identify yourself to Winery, order Winery products, provide shipment instructions for those orders, and obtain information about those orders and shipments. You agree to use the Site only in accordance with this Use Agreement. Winery may amend or terminate this Use Agreement at any time by posting a new agreement, with or without notice to you. Your continued use of the Site constitutes your acceptance of such revised or new agreement. You agree to abide by any other rules, procedures, standards, requirements, or conditions established by Winery regarding use of the Site that are communicated to you via the Site or other means. During the term of this Use Agreement, Winery grants you a non-transferable, non-exclusive, limited license to access this Site, to view and download information contained at this Site, and to interact with the Site where permitted, solely for your own company's internal business use in connection with your relationship with the Winery, subject to your ongoing compliance with all terms of this Use Agreement. Other than the foregoing limited use license, no other rights or licenses are granted by Winery hereunder. You are solely responsible for providing and maintaining all equipment, software (other than software expressly provided by Winery on the Site for your use) and services needed to access and use the Site in accordance with this Use Agreement. You agree not to use the Site for any unlawful purpose. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Site or use it in any manner not expressly authorized by this Use Agreement. You agree not to copy, reverse engineer, translate, port, modify or make derivative works of the Site. You agree not to use the Site for any use involving the processing of data of other persons or entities. You do not receive any, and Winery retains all, ownership rights in the Site. The Site may include or provide links or access to third party software ("TPS") or other software that may be downloaded by you for your use with (or relating to) the Site. You are solely responsible for downloading, properly using and supporting TPS (and any other such software), and for compliance with any and all terms of the applicable license agreement relating to such TPS (or other software). Winery provides no warranty for TPS or any other software and disclaims all liability relating thereto, as set forth in Section 3 of this Agreement. 2. Access to the Site may be limited or unavailable during periods of peak demand, systems upgrades, maintenance, or for other reasons. If the Site is unavailable or delayed at any time, you agree to use alternative means to obtain information from or communicate with Winery. For ordering, this includes (but is not limited to) placing and obtaining information about your orders by means such as calling a Winery Customer Services representative. Winery will not be liable to you if you are unable to access your information or order through the Site. When you use the Site to place an order, you acknowledge that a Winery Customer Services Representative might not review your order and you also may not have the opportunity to ask questions or otherwise interact with a Winery Customer Services representative. By placing an order through the Site, you voluntarily agree to assume any risk that may result from the lack of human review of your order in exchange for the potentially greater convenience of Internet access. 3. The Site is provided to you on an "AS IS," "AS AVAILABLE" and "WITH ALL FAULTS" basis. You assume the entire risk of loss in using the Site. The Site may contain inaccuracies, omissions, errors or other defects. Winery does not warrant that the Site will meet your needs or expectations, that the Site will be error free or uninterrupted, that errors can or will be corrected, that the Site is reliable or timely, or that any information on the Site will provide any particular results or usefulness. Any "Help" content or other assistance is provided "AS IS," "AS AVAILABLE" and "WITH ALL FAULTS" and Winery does not represent or guarantee that any "Help" information or assistance will resolve any problems or issues you may experience with the Site. Winery reserves the right to make changes and improvements to, or to discontinue, the Site or any part of it. Further, Winery does not represent that the Site is appropriate or authorized for use in all countries, states, counties or other jurisdictions; accordingly, you are responsible for compliance with all applicable laws in accessing the Site including without limitation, U.S. and other countries' import and export and other laws and regulations. WINERY MAKES AND YOU RECEIVE NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SITE OR ANY TPS OR OTHER SOFTWARE PROVIDED ON OR THROUGH THE SITE. ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE. NO ADVICE OR INFORMATION OBTAINED BY YOU THROUGH THE SITE OR FROM WINERY SHALL CREATE ANY WARRANTY NOT EXPRESSLY SET FORTH IN THIS USE AGREEMENT. IN NO EVENT SHALL WINERY BE LIABLE FOR ANY DAMAGES, CLAIM OR LOSS INCURRED BY YOU (INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR BUSINESS, EXPENDITURES, INVESTMENTS, OR COMMITMENTS, LOSS OF ANY GOODWILL, OR DAMAGES RESULTING FROM LOST, DAMAGED OR MISAPPROPRIATED DATA, INABILITY TO USE DATA, DELAYS, INTERRUPTIONS, OR COMPUTER VIRUSES) RELATING TO THE SITE OR ANY TPS OR OTHER SOFTWARE PROVIDED ON OR THROUGH THE SITE, IRRESPECTIVE OF WHETHER WINERY HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS. IF THE WARRANTY EXCLUSION OR LIMITATION OF LIABILITY SET FORTH IN THIS USE AGREEMENT IS FOR ANY REASON WHATSOEVER HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT WINERY'S MAXIMUM, AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100). In addition, Winery has no obligation or liability resulting from any cause beyond its reasonable control, including but not limited to: failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to your computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or your telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. Winery is not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Site. 4. This Site, all portions thereof, and all data, software (excluding TPS) and other information contained on the Site are copyright (c) 2000-2004 E. & J. Gallo Winery. All rights reserved. The Site also contains and is comprised of confidential information of the Winery. All information not in the public domain that is provided on or through the Site is Winery's confidential information. You agree not to publish, distribute, disclose or use any such confidential information other than as necessary to make use of the Site as authorized hereunder. The information on the Site is the property of Winery and is protected by copyright and other applicable intellectual property law. You agree not to reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate or commercially exploit that information in any manner unless the use is permitted by your other agreement(s) with Winery or Winery otherwise gives you express written consent. You agree not to alter or remove any copyright notice or proprietary legend at the Site. You also agree not to use the information on the Site for any unlawful purpose. You agree to comply with reasonable written requests by Winery to protect Winery's rights in the information and the Site. In addition, you agree that any ideas, suggestions or other feedback (collectively, "Feedback") you provide to the Winery relating to or through the Site will be the property and confidential information of Winery, and you hereby assign and agree to assign all right, title and interest in and to such Feedback, including without limitation, all intellectual property and other proprietary rights therein, to Winery and further agree to assist Winery in perfecting and enforcing such rights, at Winery's request. Trademarks of the Winery used on the Site are the property of Winery. Other products or names may be the trademarks of their respective owners. 5. You acknowledge that it may not be possible to change or cancel an order once you have placed it, and you agree to exercise caution before placing all orders. Any attempt you make to change or cancel an order is simply a request. Winery will not be liable to you if Winery is unable to change or cancel your order for any reason whatsoever. If you wish to try to change or cancel your order, you agree to call Winery's Customer Services representative at the applicable telephone number designated by Winery on the Site. If an order cannot reasonably be changed or canceled, you agree that you are bound by the terms of the original order you placed. 6. You will be responsible for the confidentiality and use of your password(s). You will be responsible for all access and use of this Site, and all information or orders entered, through and under your password(s) and any information or orders so received by Winery will be deemed to have been received from you. All orders will be deemed to be made at the time and in the form received by Winery. You agree immediately to notify Winery, and to cooperate with Winery in addressing, if you become aware of: a) Any loss or theft of your access password(s); or b) Any unauthorized use of any of your password(s) or of the Site, or any information on the Site; or c) Any receipt of confirmation of an order that you did not place, or any similarly inaccurate or conflicting report or information. Upon the reassignment or termination of any of your employees, you will take all steps necessary to secure Winery's data, software, hardware, and other property from intrusion by such employee. Such steps shall include, but are not limited to, your removing the affected employee's i.d. from the Site and removing or adjusting a reassigned employee's i.d. to match that employee's new responsibilities, or other steps as deemed necessary by Winery in its sole discretion to prevent unauthorized access by such employee. 7. You acknowledge that data, including but not limited to, confidential order, pricing, shipment, and invoicing information, may possibly be accessed by unauthorized third parties when communicated between you and Winery using the Internet or any other electronic means. To reduce this risk, whenever you access the Site you agree to use the highest level data security protocol supported by the Site. However, because absolute security is impossible to obtain, you recognize and agree that Winery is not liable for any security breach. 8. You may use applications commonly known as Web browser software that are compatible with the Site and other applications expressly approved by Winery in order to access or log on to the Site or to automate the process of obtaining, downloading, transferring or transmitting any content or information to or from the Site. You agree not to use any other software, program, application or device for any of these purposes. 9. You agree to reimburse Winery for, and hold harmless and indemnify Winery from and against, any and all claims, losses, or liabilities, costs and expenses (including but not limited to attorneys' fees) that arise, directly or indirectly, from your use of the Site or your unauthorized use of Winery's systems, servers, software, devices, telephones, on-line services or to other property of Winery by you or your agents or employees. You further agree to defend, reimburse Winery for, indemnify and hold Winery harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys' fees) arising from your violation of this Use Agreement. This obligation survives the termination of this Use Agreement. 10. Winery reserves the right to terminate or restrict your access to the Site or any portion of it in Winery's sole discretion, without notice and without limitation, for any reason whatsoever, including but not limited to the unauthorized use of your password(s) or breach of this Use Agreement. This Use Agreement terminates automatically upon termination of the distributorship agreement(s) between you and Winery. Winery will have no liability to you in the event of a termination of this Use Agreement by Winery. Sections 3, 4, 9, 10, 12, 13, 14 and 15 hereof will survive any termination or expiration of this Use Agreement. 11. The Site may provide you with the capability to send electronic communications, such as e-mail, directly to Winery or Winery's representative and to interact within applicable areas of the Site. You agree to the following terms with respect to your use of any electronic communications through the Site: a. You will not transmit information or orders to Winery using electronic communications except through those electronic features designated by Winery for those express purposes. You acknowledge that Winery will not act upon any information or orders transmitted through electronic communications other than those you transmit through the designated features. b. Winery may, but is not obligated to, review or retain your electronic communications for, among other reasons, monitoring the quality of service you receive, your compliance with this Use Agreement or the security of the Site. Winery is entitled to disclose your electronic communications to the same extent it may disclose other information about you or your account(s) as provided in this Use Agreement and/or the Winery's other agreement(s) with you. In no event will Winery be liable for any costs, damages, expenses or any other liabilities incurred by you as a result of such activities by Winery. c. You will not use any electronic communication feature of the Site for any purpose that is unlawful, abusive, harassing, libelous, defamatory, obscene or threatening, or injurious or detrimental to the Site. d. You agree not to submit to the Site any information that infringes upon or violates the privacy, rights, trademarks, copyrights or other intellectual property rights of others, anything that is illegal, defamatory, obscene, harassing, offensive, objectionable or sexually explicit, that encourages a violation of the law, that contains a virus, that is off-topic, or, without Winery's permission, that contains any solicitation or advertising. e. Winery has the right, but is not obligated to, monitor the Site to determine your compliance with this Use Agreement, with your other agreement(s) with Winery, and with applicable laws. f. The Site may contain information submitted by third parties, including without limitation users and suppliers, and may also contain links to third party sites. Those third parties are solely responsible for the content, accuracy and originality of the information they submit. Winery has no more control over such third party content than does a public library, newsstand, or bookstore, and Winery is not responsible for such third party content. Winery does not evaluate or endorse any third party information. It is your responsibility to evaluate all information provided on the Site, or to obtain specific professional advice. g. You agree to be bound by this Use Agreement and any other affirmance, assent or agreement you transmit through Winery electronic services you access by computer, including but not limited to any consent you give to receive communications from Winery through electronic transmission. You agree that, when you click on an "I agree," "I consent" or other similarly worded "button" or entry field with your mouse, keystroke or other computer device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. 12. PRIVACY POLICY. a. Your identifying information is collected by Winery whenever you submit such information to the Site (for example, when logging on or placing orders). Information collected from you includes without limitation your contact information (company name, individual name, address, and telecommunications numbers, e-mail address), distributor identification number (if applicable), authorized representative name(s), quantities and types of goods ordered, prices for such goods, and shipping date, data, method and address. When you place an order for product or provide other information using the Site, the information you submit is used internally by Winery for the following types of activities, among other things: process, fill and ship your order, prepare and forward your invoice, collect payment from you, calculate and provide you with applicable allowances or other credits, track and verify compliance with applicable laws, agreements and policies, and analyze, prepare and respond to marketing and sales performance reports, plans, and strategies. This information may be shared with third parties, including without limitation affiliates, partners, distribution centers, consultants, shippers and financial institutions, for the above types of purposes. Under some circumstances, information may also be used or disclosed to third parties such as governmental agencies for law enforcement and compliance purposes, and when appropriate to identify, contact or bring legal action against someone who may be causing injury to or interference with Winery's, or others', rights or property. We also may use the information you submit to improve or tailor the Site to your needs, or for other Winery business purposes. Except for the types of uses set forth in this Agreement, identifying information submitted to Winery will not be distributed or published. You can request correction of purported inaccuracies in the information on the Site by contacting the appropriate person indicated on the Site. However, with respect to errors in an order, the order may be filled before a correction can be implemented. b. As do most major web sites, this Site uses cookies and may use other automated information collection means. Cookies are information about you from the Site that is stored on your hard drive. Cookies save you time because you do not need to manually reenter the information stored on your hard drive. Cookies also help Winery upgrade the Site by showing when and how users utilize the Site. Here are some ways that cookies are used by the Site: to make it easier for you to log on and use on the site. Cookies may be combined by Winery with other personally identifying information already submitted. Your web browser in its default mode probably accepts cookies from this Site and all others. If you wish, you can usually change the setting so that cookies are not accepted by your browser. However, if you do so the Site may not function correctly, or at all. c. You agree that Winery may contact you via email, facsimile, telephone or other means of communication regarding the Site and your use thereof. d. The Site may also use IP addresses for the above purposes, and to analyze trends, administer the site, track users' movement, and gather broad demographic information for aggregate use. e. The Site has implemented and uses what Winery believes are reasonable security procedures to maintain the confidentiality of confidential information submitted to the Site, including without limitation firewalls and digital certificates. However, because the Internet is a public and open facility, no security measures can, nor can we, guarantee or warrant complete confidentiality under all circumstances. To help preserve your confidentiality, you are responsible for maintaining the confidentiality of your user name and password, and you should log off when you finish each session using the Site. This privacy policy statement and the policies outlined herein are not intended to and do not create any contractual or other legal rights on behalf of any third party. 13. U.S. Government Rights. This clause will apply with respect to any software provided for download from the Site by Winery. For purposes of this Agreement, "commercial computer software" means software developed or regularly used for nongovernmental purposes which (i) has been sold, leased, or licensed to the public, (ii) has been offered for sale, lease or license to the public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Agreement; or (iv) satisfied a criterion expressed in (i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this Agreement. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFAR, or other clause or provision that addresses Government rights in computer software or technical data under this Agreement. 14. You acknowledge that, in providing you with access to the Site, Winery has relied upon your agreement to be bound by the terms of this Agreement. You further acknowledge that you have read, understood, and agreed to be bound by the terms of (i) this Use Agreement, (ii) your distributorship and any brokerage agreement(s) with the Winery; and (iii) any security agreement between you and the Winery. Nothing in this Use Agreement modifies or supersedes any of those other agreements. In the event of a conflict between this Use Agreement and any other agreement(s) between you and Winery, the other agreement(s) control(s). 15. MISCELLANEOUS. a. You may not assign or delegate any part of this Use Agreement without Winery's prior written consent. b. The terms of the Uniform Commercial Code apply to this Use Agreement. c. This Use Agreement must be construed, and its performance enforced, under the internal laws of California without reference to choice of law principles. Any dispute relating to this Use Agreement or the Site may be litigated only in a court having jurisdiction and venue at the home office of Winery in Modesto, California. c. Either party may terminate this Use Agreement, and Winery may cease to provide the Site and/or any part thereof, at any time with or without cause. Upon any termination, your obligations under this Use Agreement continue (as set forth above), except that you agree to no longer access or use the Site. d. You understand that Winery may comply with law enforcement requests or subpoenas regarding your use of the Site. e. No waiver by either party of any breach or default under this Use Agreement may be deemed to be a waiver of any prior or subsequent breach or default. f. You agree to pay, and to indemnify and hold Winery harmless from, any sales, use, business, occupation, value added, excise or similar tax not based upon Winery's net income, as well as the collection or withholding thereof, including penalties and interest owed to any state, federal, foreign, or other governmental entity arising from or related to your use of the Site. Your obligations hereunder will survive the termination or expiration of this Use Agreement. g. If any provision of this Use Agreement is declared invalid or unenforceable, the remaining provisions of this Agreement remain in effect and the invalid or unenforceable provision is deemed replaced by a valid, enforceable provision that effectuates the intent of the original provision. This Use Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. h. Winery's suppliers, affiliates, subsidiaries, employees and agents are third party beneficiaries of Winery's rights under this Use Agreement. i. Winery reserves all rights not granted expressly by Winery to you in this Use Agreement. j. Winery is not required to provide any feature or function prohibited by law.