Last Updated: August 31, 2016
This Agreement is between you and Ma(i)sonry Napa Valley (“Ma(i)sonry” or “we”) concerning your use of (including any access to) the website currently located at http://www.maisonry.com/ (together with any materials and services available therein, and successor site(s) thereto, the “Site”).
This Agreement hereby incorporates by this reference any additional terms and conditions posted by Ma(i)sonry through the Site, or otherwise made available to you by Ma(i)sonry. Your use of the Site is governed by this Agreement regardless of how you access the Site, including through the Internet, through a mobile network or otherwise.
BY USING THE SITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT. IF YOU ARE USING THE SITE ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, THEN YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT.
MA(I)SONRY PROHIBITS THE SALE OF ALCOHOL TO PERSONS UNDER THE AGE OF 21. BY PURCHASING ALCOHOLIC BEVERAGES THROUGH THE SITE, YOU AFFIRM THAT YOU ARE OVER THE AGE OF 21 AND ACKNOWLEDGE THAT THE PERSON RECEIVING A SHIPMENT OF ALCOHOLIC BEVERAGES FROM THE SITE IS OVER THE AGE OF TWENTY-ONE (21). ANY ALCOHOLIC BEVERAGES MADE AVAILABLE IN CONNECTION WITH THE SITE ARE INTENDED FOR PERSONAL CONSUMPTION ONLY AND NOT FOR RESALE.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 16 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1. Changes. We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the Site following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed and the date in which the changes are effective. We may, at any time and without liability, modify or discontinue all or part of the Site (including access via any third-party links); charge, modify or waive any fees required to use the Site; or offer opportunities to some or all users.
2. Jurisdictional Issues. The Site is controlled or operated (or both) from the United States, and is not intended to subject Ma(i)sonry to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
1. Products. The Site may make available listings, descriptions and images of goods or services (collectively, “Products”), as well as references and links to Products. Such Products may be made available by Ma(i)sonry or by third parties. The availability through the Site of any listing, description or image of a third-party Product does not imply our endorsement of such Product or affiliation with the provider of such Product. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.
2. Transactions. We may make available the ability to purchase or otherwise obtain certain Products through the Site or through other sales channels such as telephone orders, mail orders or our physical location(s) (a “Transaction”). All wine made available for purchase through Ma(i)sonry is sold not by Ma(i)sonry itself but by the winery that produced the wine, with the Transaction being facilitated by Ma(i)sonry on behalf of the producing winery(ies). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD OR OTHER PERMITTED PAYMENT METHOD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You agree to pay all charges incurred by you or on your behalf through the Site, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
Restrictions. Ma(i)sonry reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Product. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner. By making a Transaction, you represent that you are age twenty-one (21) or over and that the applicable Products will be used only in a lawful manner. You agree that you will not resell any products or services obtained through a Transaction.
Refunds & Exchanges. Refunds and exchanges will be subject to Ma(i)sonry’s applicable refund and exchange policies and to any limit imposed on returns or exchanges of wine by applicable federal and state rules.
Shipping. Wine purchased through Maisonry is shipped not by Ma(i)sonry itself but by a third party shipper acting at the direction of the winery that produced the wine(s) purchased in the Transaction. By law, wine may only be delivered to individuals age twenty-one (21) and over, and generally an adult signature is required.
3. Registration; User Names and Passwords. You may need to register to use all or part of the Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Ma(i)sonry, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password or account for the Site.
4. Rules of Conduct. In connection with the Site, you must not:
• Post, transmit or otherwise make available through or in connection with the Site any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
• Post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
• Use the Site for any purpose that is fraudulent or otherwise tortious or unlawful.
• Harvest or collect information about users of the Site.
• Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available, including by hacking or defacing any portion of the Site; or violate any requirement, procedure or policy of such servers or networks.
• Restrict or inhibit any other person from using the Site.
• Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein, without Ma(i)sonry’s express prior written consent.
• Reverse engineer, decompile or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law.
• Remove any copyright, trademark or other proprietary rights notice from the Site.
• Frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service, without Ma(i)sonry’s express prior written consent.
• Systematically download and store content of the Site.
• Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather content from the Site, or reproduce or circumvent the navigational structure or presentation of the Site, without Ma(i)sonry’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Sites’ root directories, Ma(i)sonry grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Ma(i)sonry reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Site.
5. Limited License. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Ma(i)sonry to use the Site, you may view one (1) copy of any portion of the Site to which we provide you access hereunder, on any single device, solely for your personal, non-commercial use.
6. Ma(i)sonry’s Proprietary Rights. We and our suppliers own the Site, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include MA(I)SONRY, the Medallion design and any associated logos. All trade names, trademarks, service marks and logos on the Site not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
7. Third Party Materials; Links. Certain functionality of the Site may make available access to materials made available by third parties (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Ma(i)sonry with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Site at any time. In addition, the availability of any Third Party Materials through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
8. DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SITE AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) MA(I)SONRY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SITE AND ANY PRODUCTS AND THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. THIS SECTION 12 DOES NOT AFFECT ANY EXPRESS WARRANTIES THAT WE MAY PROVIDE DIRECTLY TO YOU IN WRITING WITH RESPECT TO PRODUCTS PURCHASED THROUGH THE SITE.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH MA(I)SONRY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”).
While we try to maintain the timeliness, integrity and security of the Site, we do not guarantee that the Site is or will remain updated, complete, correct or secure, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, please contact us by visiting /visit/contact.php and providing a description of such alteration and its location.
9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: MA(I)SONRY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION TRANSMITTED VIA THE SITE (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF SUCH INFORMATION), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) MA(I)SONRY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS; (B) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE SITE; AND (C) THE MAXIMUM AGGREGATE LIABILITY OF MA(I)SONRY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF: (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO MA(I)SONRY TO USE THE SITE, AND (2) TEN U.S. DOLLARS ($10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH MA(I)SONRY AND THE AFFILIATED ENTITIES.
Applicable law in states other than New Jersey may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have certain additional rights.
10. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Ma(i)sonry and the Affiliated Entities from and against all claims, losses, costs and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, the Site; and (b) any violation or alleged violation of this Agreement by you.
11. Termination. This Agreement is effective until terminated. Ma(i)sonry may terminate or suspend your use of the Site at any time and without prior notice, including if Ma(i)sonry believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site will immediately cease, and Ma(i)sonry may, without liability to you or any third party, immediately deactivate or delete your user name, password and account(s), and all associated materials, without any obligation to provide any further access to such materials. Sections 2–8 and 10–19 shall survive any expiration or termination of this Agreement.
12. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND MA(I)SONRY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT MA(I)SONRY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/aaa/ShowProperty?nodeId=/UCM/ADRSTAGE2021425&revision=latestreleased. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
13. Filtering. 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 material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Ma(i)sonry does not endorse any of the products or services listed on such site.
14. Information or Complaints. If you have a question or complaint regarding the Site, please contact us by visiting /visit/contact.php. You may also contact us by writing to 6711 Washington Street, Yountville, CA 94599, Attn: Customer Service, or by calling us at 707-944-0889. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your email correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
15. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Ma(i)sonry. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Ma(i)sonry relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Ma(i)sonry relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by email (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Ma(i)sonry will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Ma(i)sonry Napa Valley.Unless otherwise noted, Site