What’s My Wine, Inc. (“WMW”) Terms of Use

Overview:

Welcome to WMW! We are a free subscription service that provides our members with access to information about and recommendations for wines, beers, spirits and other alcoholic beverages (collectively, "alcoholic beverages data") streamed over the Internet to certain Internet-connected smart phones, tablets, and other devices ("WMW ready devices").

These Terms of Use govern your use of our service. As used in these Terms of Use, "WMW service," "our service" or "the service" means the service provided by WMW for rating and receiving recommendations for a variety of specific alcoholic beverages, including all features and functionalities, website, and user interfaces, as well as all content and software associated with our service.

If you are a resident of the United States (including its possessions and territories), you agree to the arbitration terms and class action waiver described in Section 19 to resolve any disputes with WMW (except for matters that may be taken to small claims court).

Please note that these Terms of Use include hyperlinks that may be accessed only through our website, so if you are reviewing these Terms of Use through certain WMW ready devices, you may need to visit www.WhatsMyWine.com/TermsOfUse to review these hyperlinked terms.

  1. 1.Acceptance of Terms of Use. These Terms of Use, which include our Privacy Policy (www.WhatsMyWine.com/PrivacyPolicy), and End User License Agreement (www.WhatsMyWine.com/EULA) ("EULA"), govern your use of the WMW service. By using, visiting, or browsing the WMW service, you accept and agree to these Terms of Use. If you do not agree to these Terms of Use, do not use the WMW service. 

  2. 2.Changes to Terms of Use. WMW may, from time to time, change these Terms of Use, including the Privacy Policy and EULA. Such revisions shall be effective immediately; provided however, for existing members, such revisions shall, unless otherwise stated, be effective 30 days after posting. We will endeavor to post prior versions of the Terms of Use, if any, for the preceding 12-month period. 

  3. 3.Privacy. Personally identifying information is subject to our Privacy Policy (www.WhatsMyWine.com/PrivacyPolicy), the terms of which are incorporated herein. Please review our Privacy Policy to understand our practices. 

  4. 4.Communication Preferences. By using the WMW service, you consent to receiving electronic communications from WMW relating to your account. These communications may involve sending emails to your email address provided during registration, or posting communications on the WMW service, or in the "Your Account" page and will include notices about your account (e.g., change in password, confirmation e-mails and other transactional information) and are part of your relationship with WMW. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about new WMW features and content, special offers, promotional announcements and customer surveys via email or other methods. If you no longer want to receive certain non-transactional communications, simply go to the "Email preferences" link on the "Your Account" page of our website (www.WhatsMyWine.com/YourAccount) to manage your WMW communications. Please review our Privacy Policy (www.WhatsMyWine.com/PrivacyPolicy) for further detail on our marketing communications. 

  5. 5.Membership 

    1. a.Free Membership. Your WMW free membership will continue month-to-month unless and until you cancel your membership or we terminate it.  

    2. b.Differing Memberships. We may offer a number of membership plans, including special promotional plans or memberships with differing conditions and limitations. Any materially different terms from those described in these Terms of Use will be disclosed at your sign-up or in other communications made available to you. You can find specific details regarding your membership with WMW by visiting our website and clicking on the "Your Account" link. We reserve the right to modify, terminate or otherwise amend our offered membership plans. 

    3. c.Cancellation. You may cancel your WMW membership at any time, and you thereafter no longer have access to the WMW service. To cancel, go to the "Your Account" page on our website and follow the instructions for cancellation. 

  6. 6.WMW Service 

    1. a.You must be 18 years of age, or the age of majority in your province, territory or country, to become a member of the WMW service. Individuals under the age of 18, or applicable age of majority, may utilize the service only with the involvement of a parent or legal guardian, under such person's account and otherwise subject to these Terms of Use. 

    2. b.The WMW service, and any content viewed through our service, are for your personal and non-commercial use only; provided, however, restaurants and wine merchants may use the WMW service for their own commercial purposes in order to provide to their customers ratings and recommendations for a variety of specific alcoholic beverages. During your WMW membership, we grant you a limited, non-exclusive, non-transferable, license to access the WMW service for the purpose of rating and receiving recommendations for a variety of specific alcoholic beverages. Except for the foregoing limited license, no right, title or interest shall be transferred to you.  

    3. c.You agree to use the WMW service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, or other restrictions on use of the service or content therein. For example, you agree not to use the WMW service to violate underage drinking laws, drunk driving laws, and public intoxication laws. 

    4. d.We may terminate or restrict your use of our service, without compensation or notice if you are, or if we suspect that you are (i) in violation of any of these Terms of Use or (ii) engaged in illegal or improper use of the service. 

  7. 7.Passwords & Account Access  

    1. a.The member who created the WMW account is referred to here as the Account Owner. The Account Owner has access and control over the WMW account. The Account Owner's control is exercised through use of the Account Owner's password and therefore to maintain exclusive control, the Account Owner should not reveal the password to anyone. You are responsible for updating and maintaining the truthfulness and accuracy of the information you provide to us relating to your account. 

    2. b.In order to provide you with ease of access to your account and to help administer the WMW service, WMW implements technology that enables us to sometimes recognize you as the Account Owner and provide you with direct access to your account without requiring you to retype any password or other user identification when you revisit the WMW service, which includes accessing via WMW ready devices or website. 

    3. c.You should be mindful of any communication requesting that you submit account information. Providing your information in response to these types of communications can result in identity theft. Always access your sensitive account information by going directly to the WMW website and not through a hyperlink in an email or any other electronic communication, even if it looks official. WMW reserves the right to place any account on hold anytime with or without notification to the member in order to protect itself and its partners from what it believes to be fraudulent activity. 

  8. 8.Disclaimers of Warranties and Limitations on Liability 

    1. a.THE WMW SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE WMW SERVICE, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WMW DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE WMW SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. WMW SPECIFICALLY DISCLAIMS LIABILITY FOR THE USE OF APPLICATIONS, WMW READY DEVICES, AND WMW SOFTWARE (INCLUDING THEIR CONTINUING COMPATIBILITY WITH OUR SERVICE). 

    2. b.THE RATINGS FOR ONE OR MORE SPECIFIC ALCOHOLIC BEVERAGES THAT YOU RECEIVE AS PART OF THE WMW SERVICE ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A RECOMMENDATION TO IMBIBE IN ANY PARTICULAR ALCOHOLIC BEVERAGE OR TO DRINK ALCOHOLIC BEVERAGES IN GENERAL. INDEED, WMW SPECIFICALLY RECOMMENDS AGAINST ANY CONSUMPTION OF ALCOHOL IN QUANTITIES THAT LEAD TO INTOXICATION. 

    3. c.TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL WMW OR ANY OF THEIR STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER. 

    4. d.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. 

    5. e.NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect. 

  9. 9.Intellectual Property  

    1. a.Copyright and Trade Secrets. The WMW service, including all content provided on the WMW service, is protected by copyright, trade secret or other intellectual property laws and treaties. 

    2. b.Trademarks. WHAT’S MY WINE and OENOGINE are trademarks of WMW, and all other trademarks, service marks and trade names used on our service are the property of their respective owners, and all of the above trademarks may not be copied, downloaded or otherwise exploited without the permission of WMW or the owner of such trademark, service mark or trade name, except as explicitly permitted in the section above entitled "WMW Service". 

    3. c.Patents. WMW has applied for patents that apply to our service. 

  10. 10.Infringement Policy.  WMW, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the "Act"), reserves the right, but not the obligation, to terminate your right to use our service and remove material alleged to infringe the copyright or other intellectual property rights of a third party if WMW determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. WMW accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. In addition, pursuant to 17 U.S.C. Section 512(c), WMW has implemented procedures for receiving written notification of claimed infringements and for processing such claims in accordance with the Act. All claims of infringement must be submitted to WMW in a written complaint that complies with the requirements below and is delivered to our designated agent to receive notification of claimed infringement: 

 

By mail:

What’s My Wine, Inc.

4316 Rio Robles Drive

Austin, TX 78746

By e-mail: dmcanotice@WhatsMyWine.com

 

In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:

a. A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed.

b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials.

c. Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.

d. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and/or electronic mail address.

e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law.

f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.

  1. 11.Minors.  If you have agreed to allow your minor child, or a child for whom you are legal guardian (a "Minor"), to use our service, you agree that you shall be solely responsible for: (a) the online conduct of such Minor; (b) monitoring such Minor's access to and use of our service; and (c) the consequences of any use of our service by such Minor. Children under the age of 13 should not register for any Service hereunder. At various places on our service, we ask whether users are under the age of 18 or 13. WMW relies on our users to be truthful in responding to these questions. If a user does not identify his/her proper age, we will have no way of verifying actual age with respect to our privacy policy. 

  2. 12.Child Online Protection Act Notification. Pursuant to 47 U.S.C. Section 230(d) as amended, WMW hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the Electronic Frontier Foundation Web site, http://www.eff.org, and at the GetNetWise Coalition website, http://www.getnetwise.org. To view information on our policy regarding the privacy of children under the age of 13, please see our privacy policy. 

  3. 13.Governing Law  

    1. a.These Terms of Use shall be governed by and construed in accordance with the laws of the state of Texas, U.S.A. without regard to any conflict of laws provisions. 

    2. b.You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction. 

  4. 14.Applications. You may encounter third-party applications (including, without limitation, websites, widgets, software, or other software utilities) ("Application(s)") that interact with the WMW service. These Applications may import data related to your WMW account and activity and otherwise gather data from you. These Applications are provided solely as a convenience to you, and WMW is not responsible for such Applications. SUCH APPLICATIONS ARE OWNED OR OPERATED BY THIRD PARTIES THAT ARE NOT RELATED TO WITH OR SPONSORED BY WMW AND MAY NOT BE AUTHORIZED FOR USE WITH OUR SERVICE IN ALL COUNTRIES. USE OF AN APPLICATION IS AT YOUR OWN OPTION AND RISK. 

  5. 15.Use of Information Submitted. WMW is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us ("Feedback"), including responses to questionnaires or through postings to the WMW service, including the WMW website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the WMW service. In addition, you agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law. Please note WMW does not accept unsolicited materials or ideas regarding alcoholic beverages, and is not responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted to WMW. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against WMW regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the material or idea you sent. 

  6. 16.Customer Support. To find more information about our service and its features, or if you need assistance with your account, please visit WMW Help Center (www.WhatsMyWine.com/help). In certain instances, Customer Service may best be able to assist you by using a remote access support tool through which we have full access to your computer. If you do not want us to have this access, you should not consent to support through the remote access tool, and we will assist you through other means. In the event of any conflict between these Terms of Use and information provided by Customer Support or other portions of our website, these Terms of Use will control. 

  7. 17.International Users.  WMW is based in the State of Texas in the United States. WMW makes make no claims that our service or any of its content is accessible or appropriate outside of the United States of America. If you access our service from a location outside the United States of America, you do so on your own initiative and are responsible for compliance with all local laws. You agree that you will not use our service in any country or in any manner prohibited by any applicable laws, restrictions or regulations.  

  8. 18.Arbitration Agreement. 

    1. a.You and WMW agree that any dispute, claim or controversy arising out of or relating in any way to the WMW service and these Terms of Use, shall be determined by binding arbitration or in small claims court. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and WMW are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your WMW membership. 

    2. b.If you elect to seek arbitration or file a small claim court action, you must first send to WMW, by certified mail, a written Notice of your claim ("Notice"). The Notice to WMW must be addressed to: General Counsel, What’s My Wine, Inc., 4316 Rio Robles Drive, Austin, Texas 78746 ("Notice Address"). If WMW initiates arbitration, it will send a written Notice to the email address used for your membership account. A Notice, whether sent by you or by WMW, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If WMW and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or WMW may commence an arbitration proceeding or file a claim in small claims court. 

    3. c.You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. 

    4. d.The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless WMW and you agree otherwise, any arbitration hearings will take place in Austin, Texas. 

    5. e.If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. 

    6. f.YOU AND WMW AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and WMW agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. 

  9. 19.Survival. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect. 

Last updated: August 10, 2016