Use Agreement
E. & J. Gallo Winery Trade Network Use Agreement Welcome to E. & J. Gallo Winery's Trade Network Services Web Site (the "Site"). To use the Site, you must first accept the terms and conditions of this Use Agreement by checking the acceptance at the end. Also, by using this Site, you indicate your acceptance of this Use Agreement. The terms "you" or "your" refer to the individual(s) accessing the Site and the trade member 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 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 information via compatible equipment that can connect to the Site. This information may include, without limitation, information on Winery products and Winery's advertising and promotional plans. 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 and obtaining your electronic acceptance. You also 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. Winery grants you a non-transferable, non-exclusive license to access this Site, to view and download information contained at this Site, and to interact with the Site where the Site is designed to permit such interaction, 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 Site for your use), networks, telecommunications connections, 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. To preserve Winery's intellectual property and confidential information, 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 third party software ("TPS") for your use with the Site. You are solely responsible for downloading, properly using and supporting TPS. Winery provides no warranty for TPS, per Section 3 of this Agreement. However, TPS manufacturers, suppliers, or publishers may provide their own warranties, so you should check with them. 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. Winery will not be liable to you if you are unable to access information through the Site. 3. The Site is provided to you on an "AS IS" 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. Winery reserves the right to make changes and improvements to, or 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. WINERY MAKES AND YOU RECEIVE NO WARRANTY, WHETHER EXPRESS OR IMPLIED. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE. 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 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 Site. 4. This Site, all portions thereof, and all data, software and other information contained on the Site are Copyright (c) 2000 E. & J. Gallo Winery. All rights reserved. The Site also contains confidential information that you may be obligated to protect from disclosure under the terms of your other agreements with Winery. 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. Trademarks of Winery used on the Site are the property of Winery. Other products or names may be the trademarks of their respective owners. 5. 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 entered, through and under your password(s) and any information so received by Winery will be deemed to have been received from you. 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. 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. 6. You acknowledge that data may 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. 7. 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. 8. You agree to reimburse Winery for, and hold harmless and indemnify Winery against, any costs, losses or liabilities 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 defend, 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. 9. 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. In the event of a termination of this Use Agreement by Winery, Winery has no liability to you. 10. 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 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 Site. Winery is entitled to disclose your electronic communications to the same extent it may disclose other information about 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 electronic means, including but not limited to any consent you give to receive communications from Winery through electronic transmission. You agree that, when in the future 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. 11. PRIVACY POLICY. a. Your identifying information is collected by Winery whenever you submit such information to the Site (for example, when logging on). Information collected from you includes without limitation your contact information ( company name, individual name, address, and telecommunications numbers, e-mail address), company identification number, and authorized representative name(s). When you provide information using the Site, the information you submit is used internally by Winery for the following types of activities: 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. Winery also may use the information you submit to improve or tailor the Site to your needs, or for other internal 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. 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 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 communicate with you via email (including without limitation attachments to email), facsimile, telephone or other means of communication regarding the Site, your use of the Site, and other business matters. See Section 16 for further information on email notices. 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 Winery, 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 party. 12. NOTICE TO GOVERNMENTAL USERS: COMMERCIAL COMPUTER SOFTWARE. All software and data on the Site 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 Site and all portions are Copyright (c) 2000 E. & J. Gallo Winery, Modesto, California. UNPUBLISHED. ALL RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES. 13. 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 this Use Agreement. 14. 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 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 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 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. 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. k. You (the individual accessing the site) represent and warrant that you have full power and authority to use the Site and to enter into this Agreement on behalf of the trade member. l. Winery may modify the terms of this Agreement at any time by providing written notice to you in any form permitted by this Agreement, including email (and/or attachments thereto) sent to your email address of record, or by posting a new Agreement on the Site. If you do not agree with the modified terms, you may discontinue use of the Site. If you use the Site after such modification has been posted or provided you, then you are conclusively deemed to agree with the modified Agreement. 15. CONSENT TO EMAIL NOTICES. You agree that Winery may notify and communicate with you via email (and/or attachments thereto) to your email address of record, or via any other means permitted by this Agreement, regarding any matter regarding the Site or your use thereof. You recognize and understand that email sometimes fails to transmit or be received. This consent will remain in effect until revoked by you or Winery (revocation may take several days to place into effect, and in the interim you will continue to receive email notices). You agree to maintain a valid email address. If your email address changes, you agree to notify Winery immediately. Winery is not responsible for undelivered electronic communications.