Western Carriers Terms and Conditions
These Terms and Conditions (the "Terms") govern the use of the Western Carriers, Inc. website service (the "Service") made available to you by Western Carriers and/or its affiliates (collectively, "Western Carriers")
In consideration of the promises and covenants described below, and any additional terms provided in the Western Carriers Storage Agreement and Credit & Business Agreement, or related documents, which are incorporated herein by reference, and other good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, you agree as follows:
Subject to your compliance with these terms and conditions Western Carriers grants you a limited, nonexclusive, nontransferable, personal and revocable license to access and use the Service for your personal and noncommercial use. You acknowledge that the Service utilizes usernames and passwords to enable access to the Service. THE SERVICE IS SUBJECT TO CHANGE OR CANCELLATION AT WESTERN CARRIERS’S SOLE DISCRETION AND WITHOUT NOTICE TO YOU.
2. Limitations and Restrictions.
Except as specifically provided herein, you may not, in whole or in part: (a) copy, distribute, transmit, reproduce, publish, license, rewrite, create derivative works from, transfer, or sell any material contained on this Service; or (b) reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Service or any part thereof, except as otherwise permitted by law; (c) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to the Service or any part thereof to third parties; or (d) use the Service to act as a service bureau or application service provider, or to permit remote access to the Service to any third party. Nothing in these Terms shall give you the right or license to use any trademarks used in connection with the Service, including without limitation "Western Carriers!" and/or any marks of Western Carriers’s providers, affiliates or suppliers.
3. Prohibited Actions.
Your failure to comply with any of the following conditions shall constitute a violation of these Terms and result in the termination of your right to use the Service without notice:
- Your subscription is for your own personal use of the service. It may not resold, subdivided or sublicensed to anyone else. It is not transferable to, or usable by, another person, business or other entity without our consent.
- Your data derived from use of the Service is for private non-commercial use only. Commercial use of this data in the absence of data use agreements is prohibited.
- You may not use the Service in any way that infringes or contributes to the infringement of any intellectual property rights or privacy rights of others or that is obscene, defamatory, harmful, abusive, threatening or false.
- You may not use the Service in a manner that violates any applicable laws, rules or regulations, whether federal, state or local or those of any foreign jurisdiction, nor may you use the Service in a way for unlawful purposes or to promote any unlawful activities.
- You may not interfere or attempt to interfere in any manner with the proper working of the Service. You may not take any action that imposes an unreasonable or disproportionately large load on the Service or Western Carriers’s infrastructure.
Your right to access and use the Service will automatically terminate without notice, if you breach any provision of these Terms. You agree that Western Carriers may terminate your use of this Service, and/or exercise any other remedy, including obtaining an injunction, available to it, if Western Carriers reasonably believes that you have violated or acted inconsistently with these Terms, or violated the rights of Western Carriers or any third party, or for any reason with or without notice to you. WESTERN CARRIERS RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT OR DISCONTINUE THE SERVICE OR ANY PORTION OR FEATURE THEREOF FOR ANY OR NO REASON AND AT ANY TIME IN WESTERN CARRIERS’S SOLE DISCRETION. You agree that Western Carriers will not be liable to you or any third party as a result of such modification or discontinuation.
Western Carriers may modify any of the terms and conditions contained in these Terms, at any time by providing you notice of the change via email.
6. Proprietary Rights.
Western Carriers and/or its affiliate own all right, title and interest in and to the Service, including without limitation, copyright, patent, trademark, service mark, and trade secret rights therein, and you understand and agree that you receive no ownership rights in and to the Service. You agree to take all steps necessary to protect Western Carriers’s proprietary rights in the Service related to your use and possession of the same, including but not limited to, maintaining the confidentiality of your username and password. You will, at your own cost and expense, protect and defend Western Carriers’s ownership of the Service against all claims, liens and legal processes of your creditors and will keep the Service free and clear of all such claims, liens and processes. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO WESTERN CARRIERS.
The Service is and contains confidential and proprietary information of Western Carriers. You agree to hold in strict confidence, not to use or disclose to any third party, and to take all necessary precautions to secure the confidentiality of the Service and any other nonpublic information of Western Carriers (collectively "Confidential Information"). You agree to take all steps necessary to safeguard the Confidential Information against unauthorized disclosure, reproduction, publication, or use, and to satisfy your obligations hereunder. In accordance with this provision, you will maintain at least the same precautions as you take in regard to your own confidential information, but not less than reasonable care. You will not at any time, during or after the conclusion of your use of the Service, directly or indirectly, divulge or disclose for any purpose or use for its own benefit or for the purposes or benefit of any other person any Confidential Information. You shall immediately advise Western Carriers in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information, which may come to your attention.
8. No Responsibility.
You, as the user of the Service, assume full responsibility for the selection and use of the Service and for the access, use and results obtained from the Service.
- Western Carriers assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with use of the Service. Western Carriers is not liable for any lost data resulting from the access, use and operation of the Service and/or the enforcement of these Terms. The entire risk arising out of the use or performance of the Service remains with you. Western Carriers urges all users to maintain their own back up versions of any Contributions they submit to the Service.
- If your use of this Service results in the need for servicing or replacing property, material, equipment or data, Western Carriers is not responsible for those costs. No agent or representative has the authority to create any warranty regarding this Service on behalf of Western Carriers.
- Western Carriers does not assume any liability for the content of any material provided on this Service. Reliance on any information presented on this Service is at your own risk. Western Carriers reserves the right to change or discontinue any aspect or feature of this Service at any time.
- Western Carriers disclaims any and all liability for the acts, omissions and conduct of any users, advertisers and/or sponsors on the Service or otherwise related to your use of the Service. Western Carriers is not responsible for the products, services, actions or failure to act of any other third party in connection with or referenced on the Service. Without limiting the foregoing, you may report the misconduct of users and/or advertisers or sponsors, referenced on or included in the Service to Western Carriers. Western Carriers may review your claim and take any actions it deems appropriate, in its sole discretion.
- WESTERN CARRIERS DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE RELIABLE, UNINTERRUPTED OR ERROR-FREE. WESTERN CARRIERS MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, COMPLETENESS AND ACCURACY, FOR ANY PURPOSE, OF THE SERVICE, ITS OPERATION, OR ANY INFORMATION, INPUT OR RESULTS OBTAINED THEREBY. WESTERN CARRIERS DOES NOT WARRANT THAT THE SERVICE IS ACCURATE, COMPLETE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT IT WILL BE ACCESSIBLE ON AN ONGOING BASIS OR WITHOUT INTERRUPTION.
- WITHOUT LIMITING THE FOREGOING, THE SERVICE IS PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9. Limitation of Liability and Exclusive Remedy.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: IN NO EVENT SHALL WESTERN CARRIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF WESTERN CARRIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FROM YOUR USE OR INABILITY TO USE THE SERVICE OR ANY OTHER BREACH OF THESE TERMS BY WESTERN CARRIERS SHALL BE FOR YOU TO DISCONTINUE USE OF THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. No action, regardless of form, arising out of any transaction under these Terms, may be brought by you more than one year after you have knowledge of the occurrence which gives rise to the cause of such action.
10. No Warranties:
This website is provided "as is" without any representations or warranties, express or implied. Western Carriers and/or its affiliates make no representations or warranties in relation to this website or the information and materials provided on this website. Without prejudice to the generality of the foregoing paragraph, Western Carriers, or its affiliates does not warrant that:
- this website will be constantly available, or available at all; or
- the information on this website is complete, true, accurate or non-misleading, with the exception of objective observatory statements concerning the condition of labels, capsule, bottle and fill levels. Such statements will be supported by photographs, but in no way represent an opinion concerning the provenance of the wine itself; or
- The process of moving wine descriptions from the back end of Western Carriers/Western Carriers’s inventory system into the new data base required the development of advanced formulas and algorithms. The matching process is not a perfected science and while we took all reasonable efforts and safeguards to capture the correct wine in the conversion some may not have been updated correctly.
- Nothing on this website constitutes, or is meant to constitute, advice of any kind. If you require advice in relation to matter, including but not limited to, precise descriptions and/or value of any wine within your portfolio or otherwise, you should consult an appropriate professional or wine expert.
11. Waiver and Release.
YOU HEREBY DISCLAIM, WAIVE AND RELEASE TO WESTERN CARRIERS AND COVENANT NOT TO SUE WESTERN CARRIERS FOR ANY AND ALL CLAIMS, CAUSES OF ACTION, JUDGMENTS, INJURY, LOSS, DAMAGES, EXPENSES AND DEMANDS WHICH MAY ARISE IN CONNECTION WITH YOUR USE OF, RELIANCE ON, OR REFERENCE TO THE SERVICE.
You agree to indemnify, defend and hold harmless Western Carriers and its officers, directors, employees, consultants, suppliers, agents, affiliates, and contractors from any and all claims, actions, losses, liabilities, damages, costs and expenses (including without limitation attorneys’ fees) resulting from or incidental to: (i) your use or inability to use, whether by act or omission, the Service; (ii) any claim of infringement of any intellectual property rights, privacy rights or violations any other rights of any third party based on your use of the Service, or any Contributions or Third Party Materials posted by you or on your behalf; (iii) Western Carriers’s use of the Contributions, Third Party Materials or other information, materials or records provided by you; or (iv) any negligence or willful misconduct or any breach of any warranty or covenant hereunder by you. Western Carriers may, at its option and expense, participate in its defense with counsel of its choosing. You may not settle any such claim without Western Carriers’s prior written consent.
- Assignment, Successors. No right or license under these Terms may be assigned or transferred by you, nor may any duty be delegated by you without Western Carriers’s prior written consent. Any assignment, transfer or delegation in contradiction of this provision shall be null and void. Subject to the foregoing, these Terms will bind and inure to the benefit of the successors and assigns of you and Western Carriers.
- Governing Law and Venue. These Terms shall be governed by the laws of the State of New Jersey, Hudson County. You agree that Hudson County, in the State of New Jersey, shall be the exclusive and proper forum for any action or proceeding, including arbitration, if any, related to the subject matter of these Terms. You accept the personal jurisdiction of such courts.
- Waiver, Severability. Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect.
14. Acknowledgment of Understanding – Entire Agreement.
You acknowledge that you have read these Terms, understand them and agree to be bound by them.