Terms of Service, as of 02/01/16

These Terms of Service (“TOS”) describe the terms and conditions for your access to and use of Spirit of 21, Inc. (Spirit of 21). By using Spirit of 21, you agree to be bound by these TOS, which may be updated by us from time to time. Guidelines or rules posted within Spirit of 21 are also part of the TOS. We have included several annotations in boxes to help explain the legal jargon and emphasize key sections. These annotations are for convenience only and have no legal or contractual effect.

(This is a legally binding agreement.)

(You must be 21 or older, and you must click “accept” to use Spirit of 21.)

You may not use Spirit of 21 and you may not accept the TOS if you are not of a legal age to form a binding contract and otherwise capable of entering into this agreement. We do not knowingly allow the use of Spirit of 21 by anyone under the age of 21. By clicking on the ‘yes’ button in the Registration process you are agreeing to the TOS and accepting our Privacy Policy. If you have any questions regarding these terms and conditions, please contact Customer Service.

SPIRIT OF 21’S SERVICES TO YOU

When you agree to use Spirit of 21, you agree to allow us to collect, aggregate, analyze, and organize your personal data, tasting preferences and related information consistent with our Privacy Policy.

We authorize you, subject to these TOS, to access and use Spirit of 21 and the Content, as defined below, solely for your personal use of Spirit of 21, and may not be used for any commercial or other purposes. This license is revocable at any time without notice and with or without cause. We may send you email messages as part of providing our services. These messages may relate to, but are not limited to, account summaries, newsletters, new services and features as they become available, general notifications, and offers. You can opt-out of such email communications or adjust your email preferences in your Account Settings. In accordance with our Privacy Policy, we will also communicate with you when necessary regarding security, privacy and administrative issues. Messages will be sent to the email address you have provided as your primary email address for your account, or you can choose to have messages sent to a mobile device that accepts text messages. If your email address changes, you are responsible for informing us of that change.

(We may send you emails for certain reasons.)

COLLECTION AND STORAGE OF INFORMATION

Through your use of Spirit of 21, you consent to the collection, storage and use (as set forth in the Privacy Policy) of the information you provide, including the transfer of this information within the United States and/or other countries for processing and use by Spirit of 21.

REGISTRATION

In order to register to use Spirit of 21, you provide certain information about yourself. You agree to: (a) provide true, accurate, current, and complete information as requested, and (b) keep your information accurate, current, and complete. If Spirit of 21 has reasonable grounds to believe that your information is untrue, Spirit of 21 may suspend or terminate your account. We reserve the right to reclaim usernames.

ACCOUNT, PASSWORD, AND SECURITY

You are responsible for maintaining the confidentiality of your account and password and are fully responsible for all activities that occur under your account and password. You agree to not hold Spirit of 21 liable for any loss or damage arising from or relating to your failure to properly safeguard your account or password. Please immediately notify Spirit of 21 of any unauthorized use of your password or account.

(You are responsible for any use of your log-in credentials on the Site.)

YOUR USE OF SPIRIT OF 21

Spirit of 21 is provided for informational purposes only. You understand that all information, data, text, messages, etc., that appear in your account (“Content”), whether gathered by Spirit of 21 from wineries, tasting preferences, tasting notes that are posted by you, are the sole responsibility of the person or entity from whom such Content originated. Spirit of 21 does not guarantee the accuracy, integrity, or quality of any Content. Under no circumstances will Spirit of 21 be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of Spirit of 21.

(We are not responsible for the accuracy or content of your purchase information.)

You agree to not use Spirit of 21 to: (a) access data that is not intended for your use; (b) log on to a server or account that you are not authorized to access; (c) probe, scan, or test the vulnerability of Spirit of 21’s system; (d) breach security or authentication measures; (e) send promotions and/or advertising products and/or services; (f) attempt to interfere with or disrupt the service or servers or networks connected to Spirit of 21; (g) upload, post, email, transmit, or otherwise make available any Content that (i) is unlawful, harmful, tortious, defamatory, libelous, invasive of another’s privacy, or otherwise is objectionable, (ii) you do not solely have the right to make available, or (iii) infringes an intellectual property right of any party; or (h) violate or attempt to violate any applicable local, state, national or international law, or regulation.

(Do not do bad things with the Site, try to break it, or steal our hard work.)

Spirit of 21 and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, remove, prevent, or restrict access to Content without further notice. Spirit of 21 and its designees shall have the right to remove or prevent access to any or all Content that violates (or is alleged to violate) the TOS or is otherwise objectionable.

Spirit of 21 may access, preserve, and disclose your account information and Content if required to do so by law or if such access, preservation, or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Spirit of 21, its users, and the public.

You authorize Spirit of 21 to access information maintained by identified third parties (e.g., the merchants from which you purchase wine and related information), on your behalf as your agent. Solely to provide you the services of Spirit of 21 (for example, shipment tracking information), you grant Spirit of 21 a limited power of attorney, and appoint Spirit of 21 as your attorney-in-fact and agent, to access third-party websites (such as UPS, for example), retrieve, and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. You acknowledge and agree that when Spirit of 21 is accessing and retrieving information from third-party websites, Spirit of 21 is acting as your agent, and not as the agent of or on behalf of the third party. Your, or the third party licensor, retain all copyright, patent, and trademark rights to any of the information we access on your behalf. By authorizing Spirit of 21 to access the information, you grant Spirit of 21 a perpetual, irrevocable, world-wide, non-exclusive, sub-licensable, royalty-free, fully paid up, transferable license to reproduce, distribute, publicly display, create derivative works of, and otherwise use, modify, and exploit the information without compensation to you for the purposes of providing Spirit of 21 services. You waive any rights you may have regarding the information being altered or manipulated in any way that may be objectionable to you.

(When we track shipments or order status, we do so with your permission and on your behalf. We’re not tracking shipments for them.)

(Any unauthorized reproduction, publication, further distribution, or public exhibition of the materials provided on Spirit of 21, in whole or in part, is strictly prohibited.)

DMCA NOTIFICATION

If you believe that any Content or other material provided through Spirit of 21, including through a link, infringes your copyright, you should notify Spirit of 21 via email to Spirit of 21’s at zeva@Spiritof21.com (subject line: “DMCA Notification”). To be effective, the notification must be in writing and contain the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on Spirit of 21 that is reasonably sufficient to enable Spirit of 21 to identify and locate the material; (d) how Spirit of 21 can contact you (your address, telephone number, and email address); (e) a written 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; and (f) 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. Emails sent to zeva@Spiritof21.com for any other purposes may not be answered.

(Tell us if you think a user has violated your copyright using the Site, or if you think someone incorrectly reported that you violated his or her copyright.)

SUGGESTIONS TO SPIRIT OF 21

If you submit suggestions to Spirit of 21 through feedback or otherwise, you acknowledge and agree that: (a) your suggestions do not contain confidential or proprietary information; (b) Spirit of 21 is not under any obligation of confidentiality with respect to the suggestions; (c) Spirit of 21 shall be entitled to use or disclose (or choose not to use or disclose) such suggestions; (d) Spirit of 21 may have something similar to the suggestions already under consideration; (e) your suggestions become the property of Spirit of 21 without any obligation of Spirit of 21 to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Spirit of 21 under any circumstances.

(We appreciate your comments, but if you send us creative ideas, we can use them without compensating you.)

MODIFICATIONS TO SPIRIT OF 21

Spirit of 21 may modify, terminate, suspend, or otherwise adjust functions or features without prior notice.

TERMINATION

Spirit of 21 may terminate your Spirit of 21 account and access without prior notice. You may close your Spirit of 21 account by contacting Customer Service.

LINKS

Spirit of 21 may provide, or third parties may provide, links to other websites or resources. Spirit of 21 is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content available from such websites or resources.

FEES

Spirit of 21 may be available to you with or without charge. You will have the opportunity to opt-in to any enhanced account and/or fee-based versions of Spirit of 21 that may become available.

SPIRIT OF 21’S PROPRIETARY RIGHTS

Spirit of 21 contains and uses intellectual property that is proprietary and contains trade secrets that are protected by applicable laws. You acknowledge and agree that Content contained or information presented to you through Spirit of 21 is or may be protected by copyrights, trademarks, service marks, patents, or other proprietary rights. Unauthorized use of the Content is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Content on any copy you make of the Content.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SPIRIT OF 21 SERVICE IS AT YOUR SOLE RISK, SPIRIT OF 21 IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SPIRIT OF 21 AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AND AGENTS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) SPIRIT OF 21 AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (i) THE SPIRIT OF 21 SERVICE WILL MEET YOUR REQUIREMENTS, (ii) SPIRIT OF 21 WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF SPIRIT OF 21 WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH SPIRIT OF 21 WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; OR (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF SPIRIT OF 21 IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. SPIRIT OF 21 EXPRESSLY DISCLAIMS ANY WARRANTY ASSOCIATED WITH (i) PUSH NOTIFICATIONS TO MOBILE DEVICES, AND (ii) E-COMMERCE PURCHASE.

(You use the Site or Mobile App at your own risk. We make no warranties or guarantees. Spirit of 21 assumes no responsibility for, among other things, the availability of the service or the timeliness or completeness of information displayed.)

LIMITATION OF LIABILITY AND INDEMNIFICATIONYOU EXPRESSLY UNDERSTAND AND AGREE THAT SPIRIT OF 21 AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SPIRIT OF 21 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE SPIRIT OF 21; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM OR AS A RESULT OF SPIRIT OF 21; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SPIRIT OF 21; OR (v) ANY OTHER MATTER RELATING TO SPIRIT OF 21. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.

(We are not liable for anything that happens to you that somehow may be connected to your use of the Site or Mobile App. If you use the Site or Mobile App in a way that causes us to be included in litigation, you agree to pay all legal fees and costs we incur.)

You further agree and understand that Spirit of 21 has no liability for the loss of any information you may choose to store in your Spirit of 21 account in your computer or mobile device, in the event your computer or mobile device is sold, lost or stolen. You agree to indemnify and hold Spirit of 21 and its subsidiaries, affiliates, officers, agents, employees, partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of Spirit of 21.

TRADEMARKS

SPIRIT OF 21, the Spirit of 21 Logo, and other Spirit of 21 logos and product and service names are or may be trademarks of Spirit of 21, Inc. (the “Spirit of 21 Marks”). Without Spirit of 21’s prior written permission, and except as solely enabled by any link as provided by Spirit of 21, you agree not to display or use in any manner the Spirit of 21 Marks.

GENERAL

The TOS constitutes the entire agreement between you and Spirit of 21 concerning your use of Spirit of 21, superseding any prior agreements between you and Spirit of 21 regarding Spirit of 21. If our TOS are materially changed we will immediately post a notification on this website. Your continued use of Spirit of 21 will constitute your acceptance of any such changed TOS. The TOS and the relationship between you and Spirit of 21 shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Spirit of 21 agree to submit to the personal and exclusive arbitration of any disputes arising out of and relating to your use of Spirit of 21 under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted within the County of Marin, California. You covenant not to sue Spirit of 21 in any other forum. The failure of Spirit of 21 to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. The section titles in the TOS are for convenience only and have no legal or contractual effect.

We are located in California, so all disputes must be resolved there. We will use arbitration to resolve any problems, and you cannot join a class action lawsuit or obtain a jury trial for any disputes you have with us related to your use of the Site.

You also acknowledge and understand that, with respect to any dispute with Spirit of 21, its officers, directors, employees, agents, or affiliates, arising out of or relating to your use of Spirit of 21 or these TOS: • YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and • YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.