This agreement (the “Terms & Conditions”) is a legally binding agreement between you and Touch-A-Life, its affiliates, and their respective parents and subsidiaries (individually and collectively, “Company,””we,” “our” or “us”), and applies to your use of the URL, https://talwines.org/, and all other websites, social media pages and accounts owned by the Company (individually and collectively, the”Websites”), all mobile applications owned by the Company (together with the Websites, collectively, the”Company Sites”). Through the use of the Company Sites, the Company markets wines and related products directly to consumers, and offers consumers the opportunity to take advantage of the various services offered by the Company, including, without limitation, the opportunity to purchase wine and related products from Licensed Retailers and to register as members of the various Wine Clubs that the Company services (the “WineClubs”) (collectively, the “Wine Services”).
BY CLICKING THE “I AGREE” BUTTON OR BY USING THE COMPANY SITES, INCLUDING, WITHOUT LIMITATION, BY PARTICIPATING IN THE WINE SERVICES, YOU HEREBY AGREE TO THE FOLLOWING TERMS & CONDITIONS AND OUR PRIVACY POLICY. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS & CONDITIONS AND PRIVACY POLICY, PLEASE DO NOT USE THE COMPANY SITES.
1. Registration; Account; Guest Log-In. To utilize the Wine Services, you will be asked to register for a personal account with the Company (an “Account”), or log in to the Company Sites as a guest (a “Guest Log-In”), follow the instructions provided by Company, and provide the requested personally identifiable information (i.e., name, phone number, email address, date of birth, and method of payment information) (collectively, the”PII”). You represent and warrant that all PII you provide in connection with registering your Account or using a Guest Log-In is complete and accurate, and that you are authorized to use the method of payment you provide in connection with your use of the Wine Services. We reserve the right to contact the service provider of your method of payment to conduct periodic security checks. You acknowledge and agree that you may never use another customer’s Account. You also agree to review and update your Account as and when necessary to maintain the most current PII. You may also utilize the “My Account ” feature of your Account, which tracks your order history, status of pending orders, preferences, favorites, credits,. If you choose not to create an Account but to instead place orders by using a Guest Log-In, you may contact the Company to review or update the PII you have provided by using the telephone numbers and/or addresses listed above in Section (titled “Contact Information“).
2. Eligibility. You represent and warrant that you are at least twenty-one (21) years of age. In no event shall anyone under the age of twenty-one (21) years of age use the Company Sites, utilize the Wine Services. You may never do any of the foregoing restricted activities for the benefit of any ineligible third party. The Company hereby notifies you that parental control protections (e.g., computer software, filtering services, etc.) are commercially available and may be used to assist with limiting access to the Company Sites to minors. Please contact us for details. We may refuse to register any person or service any order at any time, at our sole discretion.
3. Sale of Alcohol Beverages. The Company’s role in the transactions contemplated by these Terms & Conditions is that of a service provider that enables you, the consumer, to purchase wine and related products from those retailers holding valid licenses issued by state alcohol beverage agencies allowing for the legal sale of wine (the “Licensed Retailers”) and to participate in the services and/or any other product offers offered on the Company Sites. You acknowledge that all orders of wine and related products you place through the use of the Company Sites are processed and fulfilled by such Licensed Retailers, as the actual sellers of wine, and not by the Company. Any wine you purchase through the use of the Company Sites from the Licensed Retailers must be for personal consumption only and not for resale.
4. Contact Information. If you have any requests (including order cancelations), questions or comments about your orders made in connection with the Wine Services, your Account, your PII, the Company Sites, or any other questions or comments relating to our products and services, please contact us at:
talwines@touchalife.org
Mail:
TALWines Attn:
When you send an email to us, you agree that we may electronically communicate with you. You acknowledge that communications by email may not be confidential.
5. Orders. All offers made pursuant to these Terms & Conditions are subject to availability. In the unlikely event that a particular wine selection is currently unavailable, as part of an individual order, a substitute of similar style and of equal or greater value will be supplied in your shipment from the Licensed Retailer. The Company and the Licensed Retailer have the right to refuse orders should they not comply with the laws in your state or for any other reason and your payment will not be processed for such orders. The Company shall not be liable for any errors or omissions in product pricing or discounts offered to customers, and in the event of any such error or omission, the Company and the Licensed Retailer reserve the right to cancel affected orders and refund the charge to you as your sole remedy. The Company and the Licensed Retailer reserve the right to change product pricing and discounts offered at any time.
6. Replacement Orders; Refunds. The Company and the Licensed Retailers strive to ensure the satisfaction of their customers. In the event of late or non-delivery of your order, if your order is damaged in transit or is incorrect, or you are not satisfied with your order for any other reason, please contact us by using the contact information provided in Section (titled “Contact Information“) above, and we will use good faith efforts to rectify the issue, subject to all applicable laws.
7. Promotional Offers. By participating in the Wine Services, you will be eligible to receive various benefits provided from time to time by the Company and its Brand Partners, including, without limitation, receiving discounts, vouchers and promotional offers with respect to wine, related products, unless prohibited by law. You will be notified of these special offers through various channels of communication, including, without limitation, email and/or U.S. mail. Each such discount, voucher and promotion offered to you will apply only to those specific wines, related products advertised, and will be governed by these Terms & Conditions, as amended from time to time, and the applicable terms of such promotions as communicated to you. You will be required to input the applicable reference code included in the advertisement of the promotional offer prior to purchase. A particular reference code may only be used once and may not be used in conjunction with any other discount, voucher or promotional offer unless the applicable advertisement provides otherwise. The value of any such offer is not refundable. All offers are subject to availability and the Company reserves the right to change discounts, vouchers or offers at any time. Some states do not permit us to honor certain discounts, vouchers or offers, and the Company extends such discounts, vouchers and offers only if they are not prohibited by law. You will be notified prior to purchase if you are located in any such state.
8. Privacy Policy. Your use of the Company Sites is subject to our PRIVACY POLICY, which we may amend from time to time, and you hereby agree to its terms.
9. Customer Conduct. You agree not to engage in any of the following activities: (i) interfere with or inhibit the use of the Company Sites by other users; (ii) use the Company Sites for commercial purposes for yourself and/or third parties (e.g., selling, or attempting to sell your purchases to others, etc.); (iii) create an account using an alter-ego or by impersonating a third party, or providing any other false information; (iv) create an account if you are under twenty-one (21) years of age; (v) copy, reverse engineer, or attempt to derive the source code of any part of the Company Sites; (vi) post any comment or product review on the Company Sites that is private, obscene, vulgar, violent, harassing, discriminatory or defamatory; or (vii) use the Company Sites in a manner that would violate any of these Terms & Conditions or any applicable laws. We may investigate any reported violation of these restrictions or other provisions in the Terms & Conditions. If we determine that you have violated these restrictions, or other provisions in the Terms & Conditions, we may take any action that we deem appropriate and you potentially may be subject to liability. Such action may include, without limitation, issuing warnings, immediately terminating your Account, unilaterally removing posted content and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials or regulators and, in doing so, we may disclose any relevant information to such officials or regulators, including, without limitation, your PII, IP address(es) and your Company Sites usage history as provided in Company’s PRIVACY POLICY.
10. Intellectual Property
a. Access to Company Sites. The Company grants you the limited right to access and make use of the Company Sites as a user. The Company Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Company Sites (the “Content”) are owned by or licensed to the Company. Unless authorized in writing and in advance by the Company or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose. No provisions of these Terms & Conditions shall be construed to convey any property right or license to the Content unless expressly provided to the contrary.
b. We respect the intellectual property rights of others and require that our users do the same. If you believe your work has been copied in a manner that constitutes copyright infringement, or you believe your rights are otherwise infringed or violated by anything on the Company Sites, you must notify us and give us an opportunity to correct the problem before taking any other action by sending an email to the following address: 4701 Patrick Henry Drive, #20 Santa Clara, CA 95054. The notification must include all of the following: (i) a physical or electronic signature of the owner of the right claimed to be infringed or the person authorized to act on the owner’s behalf; (ii) a description of the copyrighted work or other right you claim has been infringed or violated;(iii) information reasonably sufficient to locate the material in question on the Company Site; (iv) your name, address, telephone number and e-mail address; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the rightful owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the owner of the right claimed to be infringed or violated or are authorized to act on behalf of the owner.
11. Third Party Servicers; Release. You may have contact or other interaction with third parties in connection with clicking third party links on the Company Sites and being directed to third party websites (the “Third Party Servicers”). You hereby acknowledge and agree that you are proceeding at your own risk and any such Third Party Servicers are not under the control of the Company. The Company shall be in no way responsible or liable for any acts, omissions, breaches, representations or warranties made by any such Third-Party Servicers, or for any losses, injuries, or other damages you incur in connection with your contact or other interaction with such Third Party Servicers (“Third Party Claims”).
YOU HEREBY RELEASE THE COMPANY, OUR OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS AND MEMBERS FROM ANY AND ALL SUCH THIRDPARTY CLAIMS NOT ATTRIBUTABLE TO THE COMPANY’S NEGLIGENT ORINTENTIONAL ACTS.
12. Disclaimer; Notice of Violations
a. “As Is.” THE COMPANY SITES AND THE CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. YOUR USE OF THE COMPANY SITES ISSOLELY AT YOUR OWN RISK.
b. Good Faith Compliance. The Company Sites may be accessed from many locations. You acknowledge and agree that consumer protection laws vary by location and that the Company has made a good faith attempt to comply with all such applicable laws, including, by way of example and not limitation, the California Subscription Act and similar statutes in other states. You agree that you will notify the Company if you believe that it is not in compliance with any laws and provide the Company with an opportunity to cure any alleged violations before invoking the Dispute Resolution mechanisms.
13. Termination. The Company reserves the right to terminate your Account at any time, with or without cause or notice, and which shall be effective immediately. If you wish to terminate your Account, you may do so by contacting us using the contact information provided in Section (titled “Contact Information“) above. You acknowledge and agree that any orders shipped before such termination are non-refundable.
14. Modification. The Company reserves the right to modify any of the terms and conditions contained in these Terms & Conditions, at any time, at our sole discretion. We will notify you of any such modifications by posting a notice on the Company Sites promptly following any such modification. Your continued use of the Company Sites or your Account following such notification will be confirmation of your acceptance of such. The Company Sites are subject to constant change. You will not be eligible for any compensation because you cannot use any part of the Company Sites or because of a failure, suspension or withdrawal of all or part of the Company Sites.
15. Indemnification. You agree to indemnify, defend and hold the Company and its employees, officers, directors and shareholders harmless to the fullest extent permitted by law from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys’ fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from or attributable to: (i) your misuse of the Company Sites; (ii) anything you post to the Company Sites; (iii) your violation of these Terms & Conditions; (iv) your violation of the rights of any third parties; and/or (v) use of the Company Sites by any other person accessing the Company Sites using a computer or Internet access account that you provided to such person.
16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUTNOT LIMITED TO, LOST PROFITS, LOST DATA, OR ANY OTHER COMMERCIAL DAMAGES, OR LOSSES, EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
17. Governing Law. These Terms & Conditions and all issues collateral thereto shall be governed and construed in accordance with the laws of the State of New York pertaining to contracts made and to be performed entirely therein and without regard to its conflict of laws principles.
18. Notice for California Users. Under California Civil Code Section 1789.3, residents of California who use the Company Sites are entitled to know that they may file grievances and complaints with: the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, inwriting at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800)952-5210, or by email at dca@dca.ca.gov.
19. Dispute Resolution, including Arbitration and Class Action Waiver
a. You and we agree that in the event of any dispute between us, you and we will first try to resolve the dispute by talking with each other. Accordingly, neither you nor we may start a formal proceeding for at least sixty (60) days after one of us notifies the other in writing of a dispute. You will send your notice to us at the address provided in Section (titled “Contact Information“) above, and we will send our notice to you at your billing address. The notice must be sent by U.S. mail, Federal Express or UPS, with confirmation of delivery requested.
b. IF YOU AND WE ARE UNABLE TO RESOLVE OUR DISPUTE BY TALKING TO EACH OTHER, YOU AND WE EACH AGREE THAT WE WILL SUBMIT THE DISPUTE TO BINDING ARBITRATION, SUBJECT TO BELOW. To the fullest extent permitted by law, any controversy or claim arising out of or relating to our relationship, these Terms & Conditions (including any dispute as to their breach, termination, enforcement, interpretation or validity), our PRIVACY POLICY (including any dispute as to its breach, termination, enforcement, interpretation or validity), the Company Sites, any promotional offers or any product or service provided under or in connection with our relationship will be resolved exclusively by binding arbitration, subject only to Subsection below. The arbitration shall be conducted before JAMS using a single arbitrator under the JAMS Comprehensive Arbitration Rules and Procedures (or their replacement) that are in effect at the time the arbitration is initiated and under the terms set forth in this Customer Agreement. The arbitrator shall be chosen by mutual agreement from a slate of ten (10) potential arbitrators proposed by either you or us and, if you and we are unable to agree, the arbitrator shall be chosen by the JAMS administrator. In the event of a conflict between the JAMS rules and these Terms & Conditions, these Terms & Conditions shall govern. Arbitration is not a court proceeding. The rules of arbitration differ from the rules of court and there is no judge or jury in an arbitration proceeding. YOU ARE HEREBY WAIVING YOUR RIGHT TO HAVE A JURY TRIAL OR TO GO TO COURT, other than as provided in Section below. You may, in arbitration, seek any and all remedies otherwise available to you where you reside, other than as waived in these Terms & Conditions. You have a right to hire an attorney to represent you in arbitration. The arbitration shall permit the discovery of relevant information that is not privileged or protected.
c. The arbitration will be conducted at the JAMS office nearest to your hometown, unless you and we mutually agree to a different location or to a telephonic arbitration. If you decide to initiate arbitration after you and we are unable to resolve the dispute between us, we will pay the costs of the arbitration proceeding, including the arbitrator’s fees and case management fees, for claims in which you or we seek less than $10,000 from the other party. For claims in which you or we seek $10,000 or more from the other party, we shall evenly share the costs of arbitration. If you are required to pay a fee or deposit to JAMS to initiate your arbitration, we will reimburse you. We will not, however, pay your attorney’s fees.
20. Waiver of Statutory Claims. By agreeing to these Terms & Conditions, you are giving up statutory claims or rights that you may have under your state’s laws, including claims for certain forms of relief or for attorneys’ fees. You agree that your waiver of any such laws does not violate your state’s laws, including, by way of example and not limitation, New Jersey’s Truth-in-Consumer Contract, Warranty & Notice Act.
21. Miscellaneous
a. Severability. In the event that any provision of these Terms & Conditions is declared void or unenforceable, such provision shall be deemed severed from these Terms & Conditions, and these Terms & Conditions shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision.
b. Entire Agreement. These Terms & Conditions, our PRIVACY POLICY and the terms and conditions that may be posted on the Company Sites or of any promotional offers we make and you accept (“Company Sites Agreements”) constitute the entire agreement between you and us with respect to the subject matter hereof, and supersede all prior agreements, whether written or oral. You confirm that you have not relied on any representation except insofar as the same has expressly been made a representation in these Company Sites Agreements. These Company Sites Agreements, including these Terms & Conditions, shall be modified other than in writing.
c. Notices. Unless otherwise specified to the contrary herein, all notices due under these Terms & Conditions shall be in writing and shall be deemed to have been made or given when any such notice is received, if personally delivered or sent by certified or registered mail; when receipt is electronically confirmed, if sent by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight courier service. Electronic notices to us shall be sent to the email address provided in Section (titled “Contact Information“) above.
d. Assignment. These Terms & Conditions are personal to you and your Account. You may not assign these Terms & Conditions without the prior written consent of the Company. The Company may assign any of its rights and delegate any of its duties hereunder at any time, without your consent, at its sole discretion. These Terms & Conditions will inure to the benefit of the Company’s successors, assigns and licensors.
e. Relationship of the Parties. Nothing contained herein will be construed as creating any relationship of employer/employee, partnership, agency, joint venture, or otherwise between you and the Company, nor will these Terms & Conditions be construed as conferring on any party any express or implied right, power, or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other party.
f. Force Majeure. The Company shall not be liable for performance of its obligations under these Terms & Conditions if it is prevented or delayed from performing such obligations as a result of (i) any provision of any present or future law or regulation of any state or of the United States, (ii) any act of God, war, civil unrest or emergency condition, or (iii) any other circumstances beyond the reasonable control of the Company.
g. Waiver. Any waiver of either party’s rights hereunder must be in writing. No waiver by either party of any breach or default of any of the provisions contained in these Terms & Conditions and required to be performed by the other party shall be construed as a waiver of any succeeding breach of the same or of any other provision.
Terms & Conditions Effective as of the Following Date: May 23, 2021