WEBSITE TERMS AND CONDITIONS
FOR WINEMYWAY VENUE MANAGERS AND WINE AUTHORITIES
This Site offers a platform for use by both Wine Authorities (consumers) and Venue Managers (restaurants/wineries/wine tasting events or such other entity as may be provided from time to time) (collectively, the ‘Member/s’).
The purpose of the Site is to enable Wine Authorities to search and find wines on digital wine lists offered by the Venue Managers. The Wine Authorities are then able to taste and rate a wine at a tasting event, cellar door (wineries), restaurant or elsewhere at their convenience. This facility enables the Wine Authorities to focus on having an enjoyable experience.
This agreement (the ‘Agreement’) provides for the terms and conditions applicable to the contractual relationship between CXLIX Pty Ltd ACN 167176203 t/a WINEMYWAY (‘WINEMYWAY’) and the Members, pursuant to which the Members are permitted to access and use the WINEMYWAY website and any web or mobile services or applications (collectively, the ‘Site’).
WINEMYWAY’s services to its Members include all services that are provided from and linked to www.winemyway.com and include all Site information referenced or linked therein (the ‘Service’). The Members’ contribution, access to and use of all information (‘Content’) on this Site is provided subject to these terms and conditions.
By using the Site, the Members agree to be bound by these terms and conditions constituting the Agreement. Members’ use will signify that they have read, understand, accept and agree to be bound by this Agreement on behalf of themselves and any Member for whom they use the Site and they represent that they have the authority to do so.
WINEMYWAY reserves the right to vary, amend or alter these terms and conditions at any time without prior notice to Members. Any revisions to this Agreement will take effect when posted in the Site and Members shall be deemed to have accepted the revised Agreement if they continue to use the Site after a period of 7 days from such posting.
WINEMYWAY, therefore, recommends that each time Members access the Site they read these terms and conditions.
Members must be of legal drinking age to access the Site. By accepting these terms and conditions, Members acknowledge that they are of legal drinking age.
1. In order to access the Service provided on the Site, Members must be registered. Members shall be required to complete registration by providing certain information as set out on the Site’s membership/registration page.
2. By completing the required registration process, Members are representing that the information in the form regarding their registration details is true and accurate in all respects and that they have the authority to enter into this Agreement.
3. Members undertake to update their registration details from time to time when they change. If we become aware that either your name and/or email address is incorrect, we reserve the right to immediately cancel your registration and acceptance for registration in the future will be at our discretion.
4. On registration, WINEMYWAY shall provide Members with a password and user name.
5. In addition to any of the rights and remedies that WINEMYWAY may have under this Agreement, WINEMYWAY may immediately terminate Members’ registration at any time if WINEMYWAY has reason to believe that Members are not using the Site in accordance with these terms and conditions, if Members breach any of these terms and conditions for any reason whatsoever and howsoever arising, or if a competent regulatory authority requires WINEMYWAY to terminate use of the Site.
6. Members are responsible for all and any Content they contribute to the Site. When Members provide Content they retain ownership of the intellectual property in that information, however Members grant WINEMYWAY a worldwide, non-exclusive, royalty-free licence (with the right to sublicense) to use (including copy, make derivative works, reproduce, translate, adapt, modify, restructure, publish, broadcast, transmit, display and distribute) the Content in any and all media including forms not yet developed. This licence ends when Members cease their registration except for Content which has already been released as part of the Service.
7. WINEMYWAY reserve the right, but will not have an obligation, to remove or refuse to distribute any Content. WINEMYWAY also reserve the right to adapt or modify Members Content for any reason whatsoever and howsoever arising, including for distribution purposes.
8. By posting Content on this Site, Members provide WINEMYWAY with an undertaking that such Content does not infringe the rights of someone else and that it does not violate the law in any other way such as by being defamatory, being of racist content, is threatening or otherwise.
9. Members agree to defend, indemnify and hold WINEMYWAY, its Directors, employees, agents, successors and assigns harmless from and against any and all liability, claim, action, demand, loss, costs including legal costs on a full indemnity basis and expenses arising out of or in connection with any Content Members provide.
10. To the extent permitted by law, Members hereby release and discharge WINEMYWAY from any and all liability or claim arising out of any loss or damage that may be suffered or incurred as a result of Members’ use of the Service.
11. Members are responsible for maintaining effective back-up procedures such as maybe necessary to replace all Members’ data in the event of loss or damage regardless of cause.
12. Members are authorised to use the Site only as Venue Managers or Wine Authorities, as the case may be.
13. Members shall cooperate with the assist WINEMYWAY in carrying out their obligations under this Agreement and shall promptly inform WINEMYWAY of any malfunction, issue or concern arising out of the use of the Site.
14. Access to the Service does not include the right to use any data mining robots or other extraction tools. Access also does not permit Members to metatag or mirror the Site without WINEMYWAY’s prior written permission. WINEMYWAY reserve the right to serve Members with notice if it becomes aware of Members’ metatag or mirroring of the Site.
15. WINEMYWAY reserves the right at its discretion to refuse to provide Members with access to the Site. By way of example, and not by limitation, access to the Site may be prevented in the event of a malicious code being detected on the Site or other emergency situations, in which event, Members shall hold WINEMYWAY harmless from and against any and all losses, claims, actions, damages, costs and expenses including legal fees arising therefrom. Should WINEMYWAY prevent access to the Site, WINEMYWAY will endeavour to provide Members with notice as soon as reasonably practicable.
16. This Site may, from time to time, contain hyperlinks to other websites. Such links are provided for convenience only and we take no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on the Site to another website does not imply WINEMYWAY’s endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
17. Members may link the Site only with WINEMYWAY’s consent. Any such linking will be entirely the Members’ responsibility and at your expense. By linking, Members must not alter any of the Site’s contents including any intellectual property notices and Members must not frame or reformat any of the Site’s pages, files, images, text or other materials.
Intellectual Property Rights
18. The copyright to all content on the Site including applets, graphics, images, layouts and text belongs to WINEMYWAY or WINEMYWAY has a licence to use those materials.
19. All trademarks, brands and logos generally identified either with the symbols TM or ® which are used on the Site are either owned by WINEMYWAY or WINEMYWAY has a licence to use them. Members’ access to the Site does not license Members to use those marks in any commercial way without WINEMYWAY’s prior written permission.
20. Any comment, feedback, idea or suggestion (‘Comments’) which Wine Authorities provide to WINEMYWAY through the Site becomes the property of WINEMYWAY. If, in future, WINEMYWAY use Wine Authorities’ Comments in promoting the Site or in any other way, we will not be liable for any similarities which may appear from such use. Furthermore, Wine Authorities agree that WINEMYWAY is entitled to use their Comments for any commercial or non-commercial purpose without compensation to the Wine Authorities or to any other person who has transmitted their Comments.
21. If Wine Authorities provide WINEMYWAY with Comments, Wine Authorities acknowledge that they are responsible for the content of such material including its legality, originality and copyright.
22. Venue Managers shall be responsible for the information and content provided to WINEMYWAY and acknowledge that they are responsible for the content of such material including its legality, originality and copyright.
23. Venue Managers shall retain ownership of any copyright, trademark, service marks, and any patents rights in and to their material and information provided by them to WINEMYWAY for the purpose of this Agreement.
24. Apart from any use as permitted under the Copyright Act 1968, Members may not, in any form, or by any means:
a) adapt, reproduce, store, distribute, transmit, print, display, perform, publish or create derivative works from any part of this Site; or
b) Commercialise any information, products or services obtained from any part of the Site, without WINEMYWAY’s written permission.
25. Members agree not to rely on the Site, the Services, any information on the Site or the continuation of the Site. The Site and the Services are provided “as is”, “as available” and without any warranties or conditions (subject to the warranties referred to in 40 below). WINEMYWAY disclaim all and make no representations or warranties, of any kind, either express or implied, as to the quality, identity, or reliability of any third party, of the Venue Managers, the Services, or the accuracy of the postings made on the Site by any Members.
26. Whilst WINEMYWAY take all due care in providing the Service, WINEMYWAY does not provide any warranty, either express or implied, including, without limitation, warranties of quality, description, merchantability or fitness for a particular purpose, safety or legality of any goods or services offered, or the ability of any Venue Managers to sell goods or deliver services, nor the ability of Wine Authorities to purchase goods or services from Venue Managers and give no warranties or representations thereto.
27. The Venue Managers are solely responsible for the accuracy and content of the information provided to WINEMYWAY for the purpose of disclosing the information on the Site. WINEMYWAY does not warrant nor represent the truth or accuracy of such information. As such, WINEMYWAY is not responsible for any errors or omissions in such information, whatsoever and howsoever arising.
28. From time to time, WINEMYWAY may host third party content on the Site such as advertisements and endorsements belonging to third parties including, but not limited to, Venue Managers. WINEMYWAY does not warrant nor represent the truth or accuracy of such advertisements and endorsements. Responsibility for the content of such material, goods or services rests with the owners of that material or provider of those goods and services. As such, WINEMYWAY is not responsible for any errors or omissions in such material, goods and services, whatsoever and howsoever arising.
29. WINEMYWAY solely provides the Service for the purpose provided for in these terms and conditions. WINEMYWAY do not control any aspect of, nor is WINEMYWAY involved in, any transactions or disputes which may transpire between Members arising out of the Service. Accordingly, it is for Members to determine the terms and conditions on which they contract and WINEMYWAY shall not be responsible nor liable for any consequences whatsoever and howsoever arising from such transactions or disputes. The Members agree to indemnify and hold harmless WINEMYWAY against all costs and expenses, including legal fees, claims or actions, incurred or suffered arising out of any transactions or disputes between Members, or arising out of any assistance which may be provided by WINEMYWAY in relation to such transactions or disputes.
30. WINEMYWAY has no control over the willingness or ability of any Member to participate in this Site.
31. WINEMYWAY has no control over or responsibility for the content, availability or performance of the Site.
32. WINEMYWAY is not liable in any way whatsoever and howsoever arising, and the Members agree not to hold WINEMYWAY responsible for any damages or losses arising out of in connection with this Agreement, including, but not limited to: the Members’ use or inability to use the Site or Services; viruses or other malicious software obtained by accessing, or linking to the Site or Services; glitches, bugs, errors, or inaccuracies of any kind in the Site or Services; damage to Members’ hardware device from the use of the Site or Services; a suspension or other action taken with respect to Members’ accounts or registration; members reliance on the quality, accuracy, or reliability of postings, material, content, profiles, ratings, recommendations, and feedback (including their content and display), or metrics found on, used on, or made available through the Site; Members’ need to modify practices, content, or behaviour or Members’ loss of or inability to do business as a result of changes to the terms of Service.
33. WINEMYWAY shall not be liable for any delay in performing any of its obligations under these terms and conditions if such delay is caused by circumstances beyond its reasonable control in which event WINEMYWAY shall be entitled to a reasonable extension of time for the performance of its obligations.
34. WINEMYWAY accept no liability for any loss whatsoever and howsoever arising including consequential loss suffered by Members arising from services WINEMYWAY has supplied. For the avoidance of doubt, this exclusion of liability shall include lost profits, data loss, business interruption, any indirect special or consequential loss or damages or economic loss.
35. WINEMYWAY has no control over or responsibility for the content of any material transmitted from or received by any Member.
36. To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
37. If the performance of this Agreement or any obligation hereunder is prevented or interfered with by an event of Force Majeure the party so affected shall be excused from such performance to the extent of such prevention of interference.
38. The Site is controlled and operated from WINEMYWAY’s facilities in Australia. WINEMYWAY makes no representations that the Site is appropriate or available for use in any other locations. Members who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign laws and regulations, if applicable.
39. By accessing the Site, Members agree to defend, indemnify and hold WINEMYWAY, its Directors, employees, agents, successors and assigns harmless from and against any and all losses, claims, actions, damages, costs and expenses including legal fees or incurred as a result of any action, or threatened action, claims, demands or liabilities that WINEMYWAY may suffer or incur or agree to pay in settlement of any claim, action, or threatened action, claim or demand, whether arising in tort or in contract, whether at common law, inequity or under statute, in so far as the same arises directly or indirectly out of Members’ use of the Site, or the performance of Members’ obligations under these terms and conditions due to their breach or non-observance of these terms and conditions.
40. Members represent and warrant that:
40.1 they will use the Site only for lawful purposes and will not use the Site to distribute, display, transmit or publish obscene, defamatory, offensive, abusive or otherwise indecent material.
40.2 they will not modify, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, circulate, decompile, reverse engineer, dissemble, rent, lease, lend or sublicense any of the material, content, software or programs on or in the Site.
40.3 they will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site.
40.4 by posting information, content and material onto the Site, they will not violate third party rights of any kind, including, without limitation, any intellectual property and privacy rights;
40.5 they are the owner of all intellectual property rights to the information, content and material on the Site and that WINEMYWAY may exercise all rights to use such information, content and material under licence without liability or obligation for any payment.
40.6 they will not use the Site to transmit any material (including viruses) which is likely to cause harm to the Site or any computer system.
40.7 they will not assign their membership registration rights to any other party, without WINEMYWAY’s prior written consent. Any unauthorised assignment shall be deemed null and void.
40.8 they shall not assign any rights and obligations under these terms and conditions, whether in whole or in part, without WINEMYWAY’s prior written consent. Any unauthorised assignment shall be deemed null and void.
40.9 they will keep your username and password confidential. Where the confidentiality of Members’ username or password is compromised, they must advise WINEMYWAY immediately on Members becoming aware. Failure to maintain their confidentiality may result in Members participation in the Site being suspended for security reasons.
41. WINEMYWAY warrants:
41.1 WINEMYWAY will endeavour to ensure the Site operates on a 365 day 24x7 basis but specifically disclaim any warranty or representation that access to the Site will be uninterrupted and free of failure or errors, or arising out of or interfered with by an event of Force Majeure.
41.2 WINEMYWAY will maintain any confidential information provided to it as we would maintain its own.
Jurisdiction and Governing Law
42. These terms and conditions are to be governed by and construed in accordance with the laws of NSW, Australia, and any claim made by either party against the other which in any way arises out of these terms and conditions will be heard in NSW, Australia, and you agree to submit to the jurisdiction of those Courts.
43. If any provision in these terms and conditions is invalid under any law the provision will be limited, narrowed, construed or altered as necessary to render it valid but only to the extent necessary to achieve such validity. If necessary the invalid provision will be deleted from these terms and conditions and the remaining provisions will remain in full force and effect.
44. Any failure or delay by us in exercising any right contained in these terms and conditions will not operate as a waiver. These terms and conditions will be binding.
45. These terms and conditions shall constitute the entire agreement between the parties and supersedes and extinguishes all prior communications, understanding, and agreements relating to the subject matter within the terms and conditions, whether oral or written.
46. WINEMYWAY undertake to take all due care with any information which Members may provide to WINEMYWAY when accessing the Site. However, WINEMYWAY do not warrant and cannot ensure the security of any information which Members may provide to us. Information Members transmit to WINEMYWAY is entirely at their own risk, although WINEMYWAY undertake to take reasonable steps to preserve such information in a secure manner.