46Brix, powered by WineDirect (the “Website”), is a web site hosted and operated by WineDirect, Inc. (“WineDirect, we, us, or our”).
Acceptance of Agreement
You agree to the terms and conditions outlined in this Agreement. This Agreement constitutes the entire and only agreement between us and you with respect to the Web Site, the content, products or services provided by or through the Web Site, and the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous agreements, representations, warranties and understandings, and may be amended by us from time to time without specific notice to you. The latest Agreement will be posted on the Web Site, and you should review this Agreement prior to using the Web Site.
In purchasing a 46Brix membership through the Web Site or through the website of one of the Wineries, you may be asked to supply certain information relevant to your purchase, including without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY PURCHASE. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the completion of membership purchases initiated by you or on your behalf.
You must be 21 years of age to use the Services of 46Brix. WineDirect reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion. Note that Wineries may have additional eligibility requirements for their sites. To receive benefits through the Wineries that are part of the 46Brix program, you must log-in to the Service. WineDirect shall not reimburse you if you fail to receive benefits (as an example, if you incur shipping costs) due to your failure to log-in to the Service.
Membership Sign-Up, Renewal and Cancellation
If you are purchasing a membership subscription, you agree to pay the applicable fee for your membership subscription. From time to time, we may offer different terms, and the membership fees for such subscriptions may vary. We only accept credit cards for payment of your 46Brix membership. The 46Brix membership fee is non-refundable except as expressly provided in this Agreement. Taxes may apply (and 46Brix may collect such taxes by charging your credit card) on either or both of the membership fee and the reduced shipping charges for the Service. Membership fees are fully earned upon payment. 46Brix only accepts U.S. billing addresses.
YOUR MEMBERSHIP FOR THE SERVICE WILL AUTOMATICALLY RENEW EACH YEAR, UNLESS YOU INDICATE THROUGH YOUR ACCOUNT AND PRIOR TO YOUR RENEWAL DATE, THAT YOU WANT YOUR MEMBERSHIP TO BE CANCELLED. IF YOU HAVE NOT CANCELLED YOUR MEMBERSHIP PRIOR TO YOUR RENEWAL DATE, WE WILL (AND YOU AUTHORIZE US TO) CHARGE YOUR MEMBERSHIP FEE TO THE CREDIT CARD WE HAVE ON FILE FOR YOU. UNLESS OTHERWISE STATED, RENEWAL TERMS ARE FOR ONE YEAR, AT THE THEN STANDARD RATE. EXCEPT AS DESCRIBED BELOW ALL FEES RELATED TO A RENEWAL OF YOUR MEMBERSHIP ARE NON-REFUNDABLE.
You may cancel your 46Brix membership effective immediately or effective at the end of your current subscription term. If you cancel your 46Brix membership effective immediately, and (i) neither you nor your registered household members have ever made an eligible purchase and (ii) you have not breached any term of this Agreement, we will refund the membership fee you paid for the current term of your membership. If eligible purchases are made by you or your registered household members, you may cancel your membership effective at the end of your current membership term and receive no refund.
UNLIMITED GROUND SHIPPING BENEFIT
46Brix members are entitled to ground shipping on all eligible purchases from the Wineries. There is a minimum purchase requirement of two bottles per order for a purchase to be eligible. Ground shipping benefits are available for items shipped to eligible addresses in the contiguous United States (excluding P.O. boxes, APO/FPO/DPO and U.S. territories, possessions and protectorates). Eligible addresses are governed by each Winery’s shipping policies and may vary from Winery to Winery. At checkout on a Winery's site, you will be notified if your order cannot be shipped to your state using 46Brix. This Agreement does not reflect product availability or the actual shipping date. Neither we nor any Winery guarantees delivery of products within the estimated transit time. Note that the Winery may provide you with additional shipment information at the time of your order. If only some items in your order are eligible for the Service, you acknowledge and agree that you will pay applicable shipping charges for the ineligible items. WineDirect does not own or sell any alcoholic beverage product available to 46Brix members. All alcoholic beverages offered for purchase by the Wineries to 46Brix members are the sole property of the Winery and sold exclusively under the license, ownership, and terms of purchase offered by the respective Winery.
Each Winery’s items that are eligible for 46Brix benefits will be designated on that Winery's site. Please log into your 46Brix account at check out on a device where 46Brix is available to ensure you receive all the benefits of your 46Brix membership.
For all returns of items eligible for 46Brix benefits, 46Brix members must follow the Winery's return policies and instructions that are set forth on the Winery's website. Note that some Wineries may charge restocking fees or fees on returns of non-defective items.
Winery Participation and Responsibilities
The Wineries that are part of our 46Brix program may vary from time to time, and you acknowledge and agree that your membership is not contingent upon the participation of any specific Winery in our program.
The content, organization, graphics, design, compilation, magnetic translation, digital conversion, and other matters related to the Web Site are protected under applicable copyrights, marks and other proprietary rights. Except for the express limited purpose permitted below, the copying, redistribution, use or publication by you of any such matters or any part of the Web Site is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Web Site. The uploading or posting of information or materials to the Web Site does not constitute a waiver of any right in such information and materials. Some content on the Web Site is the copyrighted work of third parties.
“46Brix” is one of our service marks. Other product and company names mentioned on the Web Site may be names, logos, or marks or ours or third parties. You are not allowed to use any name, logo or mark in any advertising, publicity or in any other commercial manner without the prior written consent of the owner of such name, logo or mark.
Limited Access License from Us
We give you a non-exclusive, non-sublicensable, non-transferable and revocable license (a) to access and use those aspects of the Web Site that are publicly accessible through the Web Site solely for personal and non-commercial purposes strictly in accordance with this Agreement; and (b) to print, copy, distribute, transmit, download and store in electronic format information that is generated from and made available through those aspects of the Web Site that are publicly accessible through the Web Site solely for personal and non-commercial purposes strictly in accordance with this Agreement provided you maintain all copyright and other policies contained therein. No other right or license is given to use or access the Web Site.
Parental Control Restrictions
As required by the Communications Decency Act of 1996, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to Content that may be harmful to minors. Among the many companies that provide Internet blocking and screening software are CyberPatrol, NetNanny, SurfWatch, and GuardOne. We do not sponsor or endorse any of these companies or their services.
Restrictions and Prohibitions on Use
No Legal Advice
Information contained on or made available through the Web Site is not intended to and does not constitute legal advice, recommendations or counseling under any circumstance. Your use of information on the Web Site or materials linked to the Web Site is entirely at your own risk.
Linking to the Site
You may provide links to the home page of the Web Site provided (a) you do not remove or obscure, by framing or otherwise, advertisements, the copyright notice, or other notices on the Web Site, (b) your site does not engage in illegal or pornographic activities, and (c) you discontinue providing links to the Web Site immediately upon request by us.
The Web Site may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Web Site is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in the advertiser's or sponsor's materials.
Certain sections of, or offerings from, the Web Site may require you to register. If registration is requested, you agree to provide us with accurate, complete registration information. Each registration is for your personal use only. We do not permit (a) any other person to use aspects of the Web Site under your name; or (b) access to the Web Site through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use.
Errors, Corrections and Changes
We do not represent or warrant that the Web Site will be error-free, free of viruses or other harmful components, or that defects will be corrected. We do not represent or warrant that the information available on or through the Web Site will be correct, accurate, timely or otherwise reliable. We may make changes to the features, functionality or content of the Web Site at any time without specific notice to you. Further, we reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Web Site without specific notice to you.
Third Party Content
Third party content may appear on the Web Site or may be accessible via links from the Web Site. We are not responsible for and assume no liability for any mistakes, misstatements of law, defamation, omissions, falsehood, obscenity, pornography, or profanity in the statements, opinions, representations or any other form of content on the Web Site. Further, we do not make any representations or warranties, either express or implied, with respect to the content, including, but not limited to, the quality, performance, merchantability or fitness for a particular purpose of the content or any information contained therein. You understand that information and opinions in third party content represent solely the thoughts of the author and are neither endorsed by nor do they necessarily reflect our beliefs.
We do not claim ownership of any Content you submit or make available for inclusion on the Web Site. However, with respect to all such Content, including, without limitation, creative ideas, suggestions, content, postings, artwork, material or other submissions whether via email, feedback, a public forum or otherwise (collectively, “User Submissions”), you grant WineDirect and its Affiliates the worldwide, perpetual, royalty-free, irrevocable, non-exclusive right to use, communicate, reproduce, publish, display, perform, modify, alter, adapt, translate, sublicense, distribute, create derivative works from and exploit such User Submissions in any manner, including on the Web Site or any other web sites, in television programs, on radio, in books, magazines, articles, commentaries, and in any other medium now known or later developed without your consent. You also warrant that you own or otherwise control all of the rights to any User Submissions you submit or post on or to the Web Site or otherwise transmit to us and that our public posting and other public or private use of such User Submissions will not infringe the rights of any third party. You acknowledge that you are not entitled now, or in the future, to any compensation for User Submissions you may submit or post and you waive the benefits of any provisions of law known as “droit moral” (moral rights) or any similar laws.
No User Submissions, regardless of how they may be marked, will be received by us in confidence, nor shall they be subject to any express or implied obligation of confidentially. Neither WineDirect, or its Affiliates, nor their respective officers, directors, agents or employees shall be liable for any use or disclosure of any User Submissions. You and your successors and assigns hereby waive any and all rights and remedies you may have against WineDirect, or its Affiliates, or any of their respective officers, directors, employees, or agents now or in the future, and hereby release WineDirect, its Affiliates, and any of their respective officers, directors, agents and employees from any and all claims, demands, actions, causes of action, damages, obligations, losses and expenses of whatever kind, (collectively “Claims”) relating to providing, posting, transmitting or making available through the Web Site the User Submissions to us, or our receiving, evaluating, and utilizing the User Submissions. You further agree to indemnify, defend and hold harmless WineDirect, its Affiliates, and any of their respective officers, directors, agents and employees from and against any and all Claims, including, without limitation, Claims that any User Submissions misappropriate or infringe upon the rights of any third party, and reasonable attorneys’ fees and expenses, which result or arise from, or are based on, the receipt, evaluation or use of User Submissions by WineDirect, its Affiliates or its third party licensees.
Use of Public Forums
A “public forum” means any publicly accessible message board, chat room, discussion group, folder, survey, contest, sweepstakes, user review and rate forum, or other interactive service or promotion on or accessible via the Web Site, and includes both public boards and folders. You must use, subscribe, or register in accordance with instructions that you will find on the Web Site in order to participate or contribute to any public forum. You may not submit or post on any public forum, or send to any other public forum user or our employees, any material that is unlawful, harmful, threatening, abusive, harassing, defamatory, invades a person’s privacy, violates any intellectual or other property rights, or is vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. You agree not to use any false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a communication or other Content, or attempt to do any such acts. You may not use any public forum in a commercial manner. You may not submit or post material that solicits funds, or that advertises or solicits goods or services. You may not submit or post any User Submissions or material that you know, or should have known, to be false. You may not submit or post messages regarding stocks or other securities. You may not submit, post, or transmit any information, software or other material that contains a virus or other harmful component.
WineDirect is not responsible for any User Submissions or material appearing in any public forum on the Web Site, except for Content signed by one of our identified authorized representatives. We do not screen User Submissions for libel, obscenity, invasion of privacy, copyright or trademark infringement, accuracy, or for any other reason.
Online Conduct and Unlawful Activity
We reserve the right to prohibit or remove conduct, communication or Content (including User Submissions) that we deem in our sole discretion to be harmful to users of the Web Site, subscribers, customer, recipients, Providers, Merchants, Sponsors, or Licensors, content or service providers, WineDirect or its Affiliates, or any rights of WineDirect or any third party, or to violate any applicable law. Notwithstanding the foregoing, neither WineDirect, nor its Affiliates, Providers, Merchants, Sponsors, or Licensors can ensure prompt editing or removal of questionable Content after online posting. Accordingly, neither WineDirect, nor its Affiliates, nor any of their respective officers, directors, employees, agents or employees, nor any Provider, Merchant, Sponsor, or Licensor shall assume liability for any action or inaction with respect to conduct, communication, or Content (including User Submissions) on the Web Site.
Copyrights and Designated Agent for Notification of Claims of Infringement
We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Designated Agent the following information:
Our Policy Concerning Claims of Infringement
Written Notice of Copyright Claims
Claims of infringement should be in writing and should be directed to our designated agent as specified below. Please include the following information:
- A signature of a person authorized to act on behalf of the owner of the copyright interest that is allegedly infringed;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, advertisers, product and service providers, and affiliates (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense related to your violation of this Agreement or use of the Web Site.
THE PRODUCTS, SERVICES, INFORMATION, CONTENT, AND DOCUMENTS FROM OR THROUGH THE WEB SITE ARE PROVIDED “AS-IS,” “AS AVAILABLE,” WITH “ALL FAULTS,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE EXCEPT AS PROVIDED IN SECTION 19(b). ANY PRODUCTS OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR USE OF THE SERVICES AND PRODUCTS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE WEB SITE AND THE PRODUCTS, SERVICES, INFORMATION, CONTENT, AND DOCUMENTS PRESENTED WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE WEB SITE OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED.
Limitation of Liability
Neither we nor any Affiliated Party shall be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from any errors in or omissions from the website or any services or products obtainable from it, the unavailability or interruption of the website or any features thereof your use of the website, the content contained on the website, or any delay or failure in performance beyond our control.
Notwithstanding our making third party products available on the web site through the services, we shall have no responsibility or liability to you for such third party products and any claims or disputes by you regarding these products shall be brought directly to and shall be the responsibility of, that third party Vendor.
THE AGGREGATE LIABILITY OF US AND ANY AFFILIATED PARTY IN CONNECTION WITH ANY CLAIM ARISING OUT OF, OR RELATING TO THE WEB SITE OR THE PRODUCTS, SERVICES, INFORMATION, CONTENT, AND DOCUMENTS PROVIDED THEREIN OR THEREBY SHALL NOT EXCEED $100.00 AND THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST US AND ANY AFFILIATED PARTY.
We may allow access to or advertise certain third-party product or service providers (“Merchants”) from which you may purchase certain goods or services. You understand that we do not operate or control the products or services offered by Merchants. Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. We are not a party to the transactions entered into between you and Merchants. You agree that use of or purchase from such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, and MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO THE WEB SITE.
All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on any Merchant sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.
Links to other Web Sites
The Web Site may contain links to other web sites. We are not responsible for the content, accuracy or opinions express in such web sites, and such web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked web site on the Web Site does not imply approval or endorsement of the linked web site by us. If you decide to leave the Web Site and access third party sites, you do so at your own risk.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Web Site and the Content and Materials provided therein and in a manner that does not, in the sole judgment of us, negatively reflect on the goodwill or reputation of WineDirect or any of its Affiliates.
Termination of your Account
We may terminate your Account with or without cause at any time effective immediately.
This Agreement shall be treated as though it were executed and performed in San Francisco, California, and shall be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles. Any cause of action by you with respect to the Web Site or any products, services, information, content or Documents related thereto must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth herein. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. This Agreement and all incorporated agreements and your information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger. If any provision of this Agreement is held illegal, invalid or unenforceable for any reason, that provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain in full force and effect. If any provision of this Agreement is held illegal, invalid or unenforceable, it shall be replaced, to the extent possible, with a legal, valid, and enforceable provision that is similar in tenor to the illegal, invalid, or unenforceable provision as is legally possible. To the extent that anything in or associated with the Web Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement. The title, headings and captions of this Agreement are provided for convenience only and shall have no effect on the construction of the terms of this Agreement.
Any legal controversy or legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by us relating to Web Site operations or intellectual property, shall be settled solely by confidential binding arbitration in accordance with the commercial arbitration rules of JAMS applicable at the time the arbitration commences. The arbitration shall be conducted in San Francisco, California. Each party shall bear its own attorneys’ fees. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS.
For general inquiries about the Tool and Site, please contact us at:
1190 Airport Blvd., Ste. 200
Napa, CA 94558
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