Dawson Wine Advisor Privacy & TOS Last modified: January 1st, 2018
These Terms of Service (this “Agreement”) is entered into between you (the “Subscriber,” “you” or “your”) and Dan Dawson’s Wine Advisor (“DDWA,” “we” or “us”) and applies to your use of our website located at dawsonwineadvisor.com and related digital applications (including phone and tablet applications) and governs our relationship with you. By subscribing and/or accessing DDWA, you agree to the terms of this Agreement.
By accessing DDWA, you represent and warrant that you are of the legal age to purchase and consume alcohol applicable in your country of residence and the country from which you access DDWA. If you do not satisfy this requirement, you must not access DDWA.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 13 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
DDWA requires you to create an account in order to participate in DDWA. It is a condition of your access to DDWA that the information you have provided or will provide to DDWA (the “Registration Data”) is accurate, current and complete.
Furthermore, you agree that you will not: (a) create an account for anyone other than you without our permission, (b) create a new account without our permission if we at any time disable your account, (c) impersonate any third party or misrepresent your identity or affiliation with any third party, including, but not limited to, using another subscriber’s username, password or other account information, (d) use your profile for commercial purposes or commercial gain, (e) transfer or assign your account to anyone without first getting our written permission or (f) provide your username or password to any third party or allow any third party to access your account. We reserve the right to refuse, remove or change your username as may be appropriate in our sole discretion. Subscriptions are only available for single users.
It is your responsibility to promptly update your Registration Data to maintain its accuracy. You additionally agree to promptly notify us at firstname.lastname@example.org of any suspected or actual unauthorized use of your username, password, other account information or any other breach of security that you become aware of involving or relating to DDWA.
We reserve the right to monitor your usage of DDWA in order to confirm your compliance with your obligations in this Agreement and protect our rights or comply with our legal obligations. You acknowledge and agree that we may suspend or terminate your account and your ability to access or participate in DDWA or any portion thereof for failure to comply with this Agreement. You understand that we do not conduct any independent investigation into, or attempt to verify, the Registration Data submitted by you or any subscriber or the accuracy or veracity of any Content Distributed by you or any subscriber. DDWA will take reasonable precautions to protect your data from loss, misuse, unauthorized access or disclosure, alteration, or destruction.
Your subscription is for the term you selected and paid for during the registration process, including any automatic renewal terms (the “Term”) – we will not offer any partial or full reimbursements once a subscription has been processed. You may terminate this Agreement by providing us with 15 days’ prior written notice of your intent to terminate.
- USE OF Dan Dawson’s Wine Advisor CONTENT
(a) DDWA exercises the following with respect to DDWA Content (defined below)
(i) Retention of Rights
All rights, information, materials, functions, services, software and other content contained in DDWA excluding user Content, including, but not limited to, articles, reviews, photographs, videos, logos, guides, audio clips, directories and source code (as well as their selection and arrangement) (collectively, “DDWA Content”) are our property or the property of our licensors. All trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may delete DDWA Content or features at any time, in any way, in our sole discretion.
You may access DDWA as it may exist and be available on any given day and we have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue DDWA content, partially or entirely, or change and modify prices for all or part of the services provided for you or for all our users in our sole discretion, with or without prior notice to you.
The choice of the Company Content made available on DDWA at any given time is at the sole discretion of DDWA and may change from time to time without notice.
(ii) Limitations on Subscriber Usage
Except as set forth in our Trade Subscription terms below, you may not copy, display, modify, perform, prepare derivative works of, distribute, publish or commercialize any DDWA Content in any way (including, but not limited to, scores, value ratings and value types alone). Notwithstanding the foregoing, where DDWA is configured to enable the download of particular Company Content, you may download one (1) copy of such Company Content to a single computer for your strictly personal, non-commercial use; provided, however that you shall: (a) keep intact all copyright and other proprietary notices, (b) make no modifications to the DDWA Content, and (c) not use the DDWA Content in a manner that suggests an association with us in any capacity. All rights not expressly granted are expressly reserved, and no other use is permitted without the prior written permission of DDWA. The permitted use of DDWA Content described in this Agreement is contingent on your complete compliance with this Agreement.
You may not sublicense your rights to DDWA Content under this Agreement or your subscription to any third party including, but not limited to, digital or mobile application creators, data aggregator sites and other similar sites.
You must have a DDWA Trade Subscription to use any DDWA Content in any commercial manner, including, but not limited to, publishing scores, value ratings, or value types alone, Furthermore, you may not copy, display, modify, perform, prepare derivative works of, distribute, publish or commercialize, digitally or in print, any portion of DDWA Content, including scores, value ratings, or value types alone, on behalf of any digital applications, data aggregators or media sites, or use any portion of DDWA Content within any algorithmic ratings system, without prior written permission from DDWA.
You agree not to: (a) restrict or inhibit any other user from accessing and using DDWA, including, without limitation, by means of “hacking” or defacing any portion of DDWA, (b) use DDWA (or any portion thereof) for any unlawful purpose, (c) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of DDWA, (d) “frame” or “mirror” any part of DDWA without our prior written authorization, (e) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to download, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of DDWA or to collect or copy DDWA Content or (f) harvest or collect information about the Community’s users without our express written consent.
Subscriptions are subject to a Single User License wherein sharing access to your account with others is a violation of this Agreement and is grounds for immediate termination of your subscription, without a full or partial refund of your subscription fee. Each subscription you obtain provides access to DDWA through a single account on any one personal computer or a mobile electronic device that provides access to the Internet (“Device”). You may not make concurrent or simultaneous use of an account on more than one Device at any one time. If you want to access DDWA on more than one Device at the same time, you will need to obtain an additional subscription for each concurrent usage.
Any violation of this Agreement or use of the DDWA Content beyond what is specifically permitted in this Agreement is grounds for immediate termination of your subscription without notice and without a right of refund of your subscription fee, and may constitute an infringement of our intellectual property rights.
(b) Subscription options are as follows:
(i) DDWA Consumer: Unlimited access to all areas of dawsonwineadvisor.com except for wholesale pricing and wholesale purchase contact information. Consumer subscription rates are:
-$5.95 for a 1 month term; renewed automatically
-$50 for a 1 year term; renewed automatically
-Single user license
-May be purchased as a gift
-Group subscriptions are available
(ii) DDWA Trade: Full access to dawsonwineadvisor.com, including wholesale pricing and wholesale purchase contact information. Trade subscription rates are:
-$10.95 for a 1 month term; renewed automatically
-$100 for a 1 year term; renewed automatically
-Single user license
-May be purchased as a gift
-Group subscriptions are available
– Each distributor or entity with a different license number within the same family group in the same state must have a separate subscription.
- DDWA TRADE SUBSCRIBER TERMS
(a) Permitted Use of DDWA Content
DDWA Trade Subscribers:
(i) are permitted limited use of DDWA Content on their website, in blogs and on flyers and promotional materials, solely in connection with the sale or distribution of wine, and solely as permitted by this Agreement.
(ii) may only download and use DDWA Content in direct connection with those wines you currently have “For Sale,” which is defined as a wine that is in stock, on order, or where there is direct means to obtain but only in connection with a legitimate offer.
(iii) may use DDWA Content, including scores, value ratings, value types & tasting notes, on a single website that is directly controlled and owned by the DDWA Trade subscriber, provided, where practical, that the DDWA Trade subscriber provides a global link to dawsonwineadvisor.com on such website. As used in this section, a “global link” is a link that is accessible from any webpage that shares the same domain name as the website in which a DDWA Trade Subscriber uses any DDWA Content.
(iv) may not share DDWA Content with any third party including, but not limited to, digital or mobile application creators, data aggregator sites and other similar sites, whether through APIs or other digital form, or in printed form.
(v) may obtain rights from us to use Company Content beyond these limitations by obtaining our prior written consent as part of a customized DDWA Trade Partnership.
(b) Attribution of Company Content
Your citation of the DDWA Content must include: (i) the name of the author of the DDWA Content (for example, Daniel Dawson, Dawson, D. Dawson) and the correct wine and vintage, (ii) a citation to DDWA (acceptable citations are Dan Dawson’s Wine Advisor, Dawson Wine Advisor, dawsonwineadvisor.com) and (iii) if feasible and published in electronic format, a hyperlink to the cited material. For example, a proper citation would be: Dan Dawson, Dan Dawson’s Wine Advisor. Standalone scores without the tasting note should be preceded or succeeded with “DDWA”, for example DDWA 91 or 91 DDWA. You agree to remove or revise any such citation upon our request. You may not, at any time, distort the DDWA Content in any manner.
(c) Subscription Usage
DDWA Trade Subscriptions comprise Single User Licenses that must not be shared, DDWA Trade Subscribers’ use of DDWA Content and this subscription is limited solely to use by the Subscriber accessing DDWA via a Device and use in connection with your business.
You may not use DDWA Content except as specifically provided herein. Your subscription is personal to you and not transferable or sub-licensable to, or usable by, any other third party including, but not limited to, app developers. In particular, this Agreement does not authorize you to allow third party application developers to link to or embed Company Content that is available through your website or internal database(s) within such third party applications via APIs or any other means. In addition, access to DDWA using computer programs, software or routines, or by another means, including but not limited to, Web robots, Web wanderers, crawlers or spiders, that are designed to systematically download the Content in any manner, is specifically and strictly prohibited.
COMPANY CONTENT IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT OR COMPANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT DDWA OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT OR COMPANY CONTENT. SUBSCRIBER HEREBY IRREVOCABLY WAIVES ANY CLAIM AGAINST US WITH RESPECT TO CONTENT OR COMPANY CONTENT. ANY USE OF DDWA CONTENT IS AT YOUR OWN RISK.
WE NEITHER WARRANT NOR REPRESENT THAT YOUR PARTICIPATION IN DDWA WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED IN DDWA MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.
WE DO NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO OUR SERVICES, NOR DO WE HAVE ANY OBLIGATION TO MONITOR THE USE OF OUR SERVICES BY OTHER USERS OF DDWA THEREFORE, WE DISCLAIM ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
WE DO NOT GUARANTEE THAT THE SERVICES WE PROVIDE WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF DDWA DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
SHOULD DDWA CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS AND RECOMMENDATIONS OF THIRD PARTY INDIVIDUALS AND ORGANIZATIONS, DDWA DOES NOT REPRESENT OR ENDORSE THE ACCURACY OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED THROUGH DDWA. ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT OR INFORMATION—INCLUDING SPECIFICALLY FOR PURCHASING DECISIONS AND/OR CELLARING ANY PARTICULAR WINE—IS AT YOUR SOLE RISK.
You are responsible for maintaining the confidentiality of your username, password and your account, as well as all activities that are authorized by anyone using your account. You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities’ respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities and costs (including, but not limited to, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim (including any third party claim): (i) arising out of your breach of this Agreement, (ii) claims arising from your access to DDWA (iii) claims arising out of your Distribution of Content; and (iv) claims arising from your account; including, but not limited to, claims for defamation, trade disparagement and intellectual property infringement and related damages.
- LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE BE LIABLE TO YOU FOR (a) any damage, loss or expenses suffered by YOU as a result of any viruses, worms, “Trojan horses” or similar programs, denial or service attack, spamming or hacking or consequential damages; (b) any fault, inaccuracy, omission, delay or any other failure with DDWA caused by YOUR computer equipment; (c) any inaccuracies or errors in or omissions from DDWA (d) any delays, errors or interruptions in the transmission or delivery of DDWA (e) any inability to PARTICIPATE IN the COMMUNITY; (f) any loss or damage arising by any reason of non-performance.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO SUBSCRIBER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING DDWA. MOREOVER, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.
WE MAY TERMINATE YOUR FURTHER ACCESS TO DDWA OR CHANGE DDWA OR DELETE CONTENT, COMPANY CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
You acknowledge that DDWA may collect some personal information (e.g. Registration Data) as well as the following information as you access the Community:
- Site activity information. We keep track of some of the actions you take within DDWA.
- Access Device and Browser Information. When you access DDWA from a computer, mobile phone, or other device, we may collect information from that device about your browser type, location, and IP address, as well as the pages you visit.
- Restrictions on Use. We will not disclose your personal information to any third party provided, however, that our obligations under this Subsection shall not apply to information that is in the public domain through no fault of ours or the disclosure of which is required by law.
- Links to Third Parties. There may be links within DDWA to various third party websites. If you click on such a link and are redirected to a third party website, please note that any information you share will be governed by their privacy policies.
- Requests. If you are a California resident, California Civil Code Section 1798.83 permits you to request information regarding our disclosure of your personal information to third parties for the third parties’ direct marketing purposes. To make such a request, please write us at email@example.com
- JURISDICTIONAL AND VENUE ISSUES
ARBITRATION CLAUSE AND CLASS ACTION WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR ACCESS TO OR PARTICIPATION IN DDWA AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this User Agreement.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
You agree that this Agreement shall be governed by the exclusive jurisdiction and venue of the state or federal courts located in San Francisco, San Francisco, California, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
No waiver of any provision of this Agreement by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR DDWA MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
DDWA is set up for users located in the United States. Therefore, those who choose to access DDWA from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. DDWA does not make any representation that the Content available on dawsonwineadvisor.com is appropriate or available for use outside the United States. You may not use dawsonwineadvisor.com or any Content in violation of U.S. export laws and regulations.
If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
- CHANGES TO THIS AGREEMENT
This is the complete Agreement with respect to your use of dawsonwineadvisor.com. However, we may occasionally update this Agreement. When we do, we will also revise the “last updated” date at the top of the copy of the Agreement posted on dawsonwineadvisor.com. For changes to this Agreement we consider material, we will notify you by placing a prominent notice on dawsonwineadvisor.com. Such changes will be effective when posted by us. Your continued use of DDWA after the date upon which this Agreement is changed, and the changes are posted, will constitute your continued acceptance of this Agreement. Your only alternative, should you no longer wish to be bound by this Agreement, is termination of your use of DDWA. No full or partial refunds will be offered in such an event.
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
- ATTORNEYS FEES
If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, DDWA shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which it may be entitled.