Use Agreement
Welcome to E. & J. Gallo Winery's Supplier Network Services Web Portal (the "Portal"). To access or use the Portal, you must first accept and agree to be bound by these terms and conditions by checking the acceptance at the end and clicking “I ACCEPT.” If you do not accept these terms, you will be unable to access or use the Portal. Also, by using this Portal, you indicate your acceptance of these terms. The terms "you" or "your" refer to the individual(s) accessing the Portal and the supplier on whose behalf those individual(s) are doing so. You may review this Use Agreement at any time by clicking on the "Agreements" link appearing in one or more pages in the Portal. 1. This Use Agreement states the terms and conditions of your use of the Portal. Through the Portal, E. & J. Gallo Winery ("Winery") is making available to you interactive computer services via compatible equipment that can connect to the Portal. These services will be related to your supplier-purchaser relationship with the Winery, and may include, without limitation, a shipment notification system that allows you to identify yourself to Winery, examine outstanding purchase orders that are specific to your company, provide fulfillment and shipment information relating to those purchase orders and print a bar code label which shall be affixed by you to each unit you ship to the Winery. If you use the shipment notification system, you agree to fulfill orders in accordance with the information provided in your shipment notifications, and to affix the appropriate bar code labels to each item in your shipment, as provided through the Portal. You are authorized to use the Portal solely in connection with your supplier-purchaser relationship with Winery. You agree to use the Portal 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. You agree that your continued use of the Portal constitutes your acceptance of such revised or new Use Agreement. You also agree to abide by any other rules, procedures, standards, requirements, or conditions established by Winery regarding use of the Portal that are communicated to you via the Portal or other means. Winery grants you a non-transferable, non-exclusive license to access this Portal, to view and download information contained at this Portal, and to interact with the Portal where permitted, solely for your own company's internal use, subject to your ongoing compliance with all terms of this Use Agreement. You are solely responsible for providing and maintaining all equipment, software (other than software expressly provided by Winery on the Portal for your use) and services needed to access and use the Portal in accordance with this Use Agreement. You agree not to use the Portal for any unlawful purpose. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Portal 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 Portal. You agree not to use the Portal for any use involving the processing of data of other persons or entities. You agree not to use or attempt to use the Portal, including without limitation, any features or functions thereof, or the Winery systems hosting or providing access to the Portal for any purpose not authorized hereunder, including without limitation, to conduct any denial of service attacks. You agree not to attempt to obtain or access any information other than that information to which the Winery intentionally provides you access, and not to attempt to obtain or access any purchase orders other than your company’s purchase orders with the Winery. You will ensure that your hardware, software, data and systems used to access the Portal are free of worms, viruses or any other routine that could disable, erase or otherwise harm the Portal or Winery’s hardware, software, data or systems. You hereby agree and acknowledge that you are fully liable and responsible for any and all damages arising from your use of the Portal and/or your violation of any of the terms of this Use Agreement. You do not receive any, and Winery retains all, ownership rights in the Portal. The Portal may include third party software ("TPS") for your use with the Portal. You are solely responsible for downloading, properly using and supporting TPS. Winery provides no warranty for TPS, per Section 3 of this Agreement. 2. Access to the Portal may be limited or unavailable during periods of peak demand, systems upgrades, maintenance, or for other reasons. If the Portal is unavailable or delayed at any time, you agree to use alternative means to obtain information from or communicate with Winery, such as calling a Winery Supplier Development department representative. Winery will not be liable to you if you are unable to access your information through the Portal. When you use the Portal to provide shipment notifications or other communications, you acknowledge that a Winery representative may not review your shipment notifications or other communications and you also may not have the opportunity to ask questions or otherwise interact with a Winery representative. By providing shipment notifications or other communications through the Portal, you voluntarily agree to assume any risk that may result from the lack of human review of your shipment notifications or other communications in exchange for the potentially greater convenience of Internet access. 3. The Portal 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 Portal. The Portal may contain inaccuracies, omissions, errors or other defects. Winery does not warrant that the Portal will meet your needs or expectations, that the Portal will be error free or uninterrupted, that errors can or will be corrected, that the Portal is reliable or timely, or that any information on the Portal will provide any particular results or usefulness. Any “Help” content or other assistance is provided “AS IS,” and Winery does not represent or guarantee that any “Help” information or assistance will resolve any problems or issues you may experience with the Portal. Winery reserves the right to make changes and improvements to, or discontinue, the Portal or any part of it. Further, Winery does not represent that the Portal 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 and using the Portal, including without limitation, U.S. and other countries’ export laws and regulations. WINERY MAKES AND YOU RECEIVE NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PORTAL. 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 PORTAL 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), 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 TEN U.S. DOLLARS ($10). 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 Portal. 4. This Portal, all portions thereof, and all data, software (excluding TPS) and other information contained on the Portal are Copyright (c) 2000-2003 E. & J. Gallo Winery. All rights reserved. The Portal also contains confidential information of Winery. You agree not to publish, distribute, disclose or use any such confidential information other than as necessary to make use of the Portal as authorized hereunder. The information on the Portal 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 Portal. You also agree not to use the information on the Portal for any unlawful purpose. You agree to comply with reasonable written requests by Winery to protect Winery's rights in the information and the Portal. In addition, you agree that any ideas, suggestions or other feedback (collectively, “Feedback”) you provide to Winery relating to or through the Portal will be the property 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 Winery used on the Portal 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 a shipment notification or other communication once you have entered it, and you agree to exercise caution before entering any such information. Any attempt you make to change such shipment notification or other communication is simply a request. Winery will not be liable to you if Winery is unable to change such shipment notification or other communication. If such information cannot reasonably be changed, you agree that you are bound by the terms of the shipment notification or other communication as entered by you and you hereby agree to act in accordance therewith. 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 Portal, and all information entered, through and under your password(s) and any information so received by Winery will be deemed to have been received from you. All shipment notifications or other communications 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 Portal, or any information on the Portal; or c) Any receipt of confirmation of a shipment notification or other communication that you did not enter, 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 Portal 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 Portal you agree to use the highest level data security protocol supported by the Portal. 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 Portal and other applications expressly approved by Winery in order to access or log on to the Portal or to automate the process of obtaining, downloading, transferring or transmitting any content or information to or from the Portal. 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, liabilities, costs and expenses (including but not limited to attorneys' fees) that arise, directly or indirectly, from the 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 reimburse Winery for, and indemnify and hold Winery harmless from and against any and all claims, losses, liabilities, costs and expenses (including but not limited to attorneys' fees) arising from or related to your use of the Portal, your Feedback and/or 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 Portal 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 supply agreement(s) between you and Winery. In the event of a termination of this Use Agreement by Winery, Winery will have no liability to you. 11. The Portal 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 Portal. You agree to the following terms with respect to your use of any electronic communications through the Portal: a. You will not transmit information 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 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 Portal. 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 its 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 Portal for any purpose that is unlawful, abusive, harassing, libelous, defamatory, obscene or threatening, or injurious or detrimental to the Portal or Winery. d. You agree not to submit to the Portal any information that infringes upon or violates the privacy, rights, trademarks, copyrights or other intellectual property rights of others, anything that is illegal, false, 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. You agree to enter accurate information with respect to all shipment notifications. e. Winery has the right, but is not obligated to, monitor the Portal to determine your compliance with this Use Agreement, with your other agreement(s) with Winery, and with applicable laws. f. The Portal 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 Portal, 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 Portal (for example, when logging on or providing shipment notifications). Information collected from you includes without limitation your contact information (supplier name, individual name, address, and telecommunications numbers, e-mail address), supplier identification number, authorized supplier representative name(s), quantities and types of goods to be supplied, prices for such goods, and shipping date, data, method and address. When you provide shipment notification or provide other information using the Portal, the information you submit may be used internally by Winery for the following types of activities: point-of-sale, supply chain and production planning and processing, authorizing payment to you, tracking and verifying compliance with applicable laws, agreements and policies, reviewing and planning capital, energy and MRO projects and technology projects, and analyzing, preparing and responding 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 Portal to your needs, or for other internal Winery business purposes. Except as 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 Portal by contacting the appropriate person indicated on the Portal. b. As do most major web sites, this Portal uses cookies and may use other automated information collection means. Cookies are information about you from the Portal 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 Portal by showing when and how users utilize the Portal. 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 Portal 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 Portal 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 Portal and your use thereof. d. The Portal 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 Portal has implemented and uses what Winery believes are reasonable security procedures to maintain the confidentiality of confidential information submitted to the Portal, 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 Portal. 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 party. 13. NOTICE TO GOVERNMENTAL USERS: COMMERCIAL COMPUTER SOFTWARE. All software and data on the Portal is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct. 1995) consisting of "commercial computer software" and "commercial computer documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Governmental users acquire the information with only those license rights set forth herein. The Portal and all portions are Copyright (c) 2000-2003 E. & J. Gallo Winery, Modesto, California. UNPUBLISHED. ALL RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES. 14. You acknowledge that, in providing you with access to the Portal, 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 supply agreement(s) with Winery; and (iii) any security agreement between you and 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 Portal 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 at any time without cause. Upon any termination, your obligations under this Use Agreement continue, except that you agree to no longer access or use the Portal. d. You understand that Winery may comply with law enforcement requests or subpoenas regarding your use of the Portal. 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 Portal. Your obligation 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 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.