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AmericanWinery.com Terms of Service

  1. Intellectual Property (“IP”).
    1. AGENT (AmericanWinery.com, The American Winery LLC) owns all trademarks and copyrights used in connection with the Website, including but not limited to The American Winery trademarks and the URL assigned to the Website (“AGENT’s IP"), but excluding the WINERY’s brand name, label images and other trademarks and copyrighted material specific to the WINERY’s business or products (“WINERY’s IP”). Each party grants to the other the non-exclusive right to use the other party’s IP during the term of this Agreement, only in connection with that party’s activities pursuant to this Agreement. Each party shall provide the other with reasonable access to any materials in which AGENT’s IP is used. Each party has the right to disapprove or modify any actual or proposed use of its IP by the other party. Each party shall comply with the other party’s instructions relating to form and placement of trademark legends and notices on any mutually agreed-upon materials.
    2. Each party acknowledges the other’s exclusive right, title and interest in its IP and will not at any time do, or cause to be done, any act that contests or impairs that party’s exclusive right, title and interest to its IP. In connection with the use of the other party’s IP, neither party will in any manner represent that it has any ownership interest in the IP or in any federal or state registration thereof. Each party acknowledges that use of the other party’s IP shall not create in its favor any right, title or interest in or to the other party’s IP and that all use it makes of the IP shall be for the express benefit of the party owning that IP.
    3. Upon termination of this Agreement for any reason, each party shall cease and desist from all use of the other party’s IP in any way, and all rights to the use of that IP shall immediately revert to its owner.
  2. Due Diligence; Compliance with Laws.
    1. WINERY assumes all responsibility for the design, development, supply, production and performance of the products it sells to customers through AGENT, and for the protection of its trademarks, trade names and other intangible personal property.
    2. AGENT shall comply with all federal, state and local laws, rules and regulations which pertain to its business of providing sales, marketing and administrative services for WINERY through the Website.
    3. AGENT holds no federal or state alcoholic beverage permits or licenses in its name and conducts its activities on behalf of WINERY at the express direction of WINERY, and under the authority of WINERY’s licenses and permits as an agent of WINERY. WINERY acknowledges that it is responsible for compliance with all state and federal alcoholic beverage laws and regulations, that AGENT is providing only sales, marketing and administrative services and that WINERY is responsible to alcoholic beverage regulatory authorities for AGENT’s activities.
    4. WINERY is responsible for reporting and remittance of any and all applicable taxes, including excise and sales taxes. WINERY is responsible for the submission of any and all reports required by any state or federal agency, including any monthly shipment reports required under state direct-to-consumer shipping laws or other state laws.
  3. Indemnity and Insurance.
    1. WINERY agrees to and shall indemnify and hold AGENT harmless against any and all liability, damage or expense (including costs and attorney's fees and expenses) by reason of, arising out of, or relating to, any acts, duties, obligations or omissions of WINERY or of WINERY’s employees, representatives or agents, in connection with WINERY’s performance under this Agreement, and WINERY shall, at the request of AGENT, assume the defense of any demand, claim, action, suit or proceeding brought against AGENT by reason thereof and pay any and all damages assessed against, or that are payable by, AGENT as the result of the disposition of any such demand, claim, action, suit or proceeding. Notwithstanding the foregoing, AGENT may be represented in any such action, suit or proceeding at its own expense and by its own counsel. In addition, WINERY agrees to reimburse AGENT for any and all costs and attorney's fees and expenses incurred by AGENT in successfully enforcing the provisions of this paragraph, whether by prosecution of a lawsuit or otherwise. The provisions of this paragraph shall survive indefinitely the termination of this Agreement.
    2. Notwithstanding the foregoing, AGENT assumes all responsibility for, shall bear all monetary liabilities and expenses from, and shall indemnify and hold WINERY harmless from all monetary liability, cost, expense, claim, loss or damages caused by reason of any act or omission of AGENT constituting gross or willful negligence, and for any violation of any law or regulation governing AGENT’s activities pursuant to this Agreement.
  4. Termination. Unless earlier terminated as provided herein, this Agreement may be terminated or not renewed at the end of the one year term by either party giving the other, not less than thirty (30) days from the expiration date of the then-current term, written notice of its intent to not renew the Agreement. Upon written termination given by one party to the other, this Agreement shall remain applicable with respect to any orders of products which AGENT has previously forwarded to WINERY and which WINERY has accepted, and with respect to any other orders received and accepted by WINERY within the thirty (30) day notice of termination period. Absent written termination, the Agreement will automatically renew for successive one year terms until terminated in accordance with the terms of this Agreement.
  5. Governing Law and Disputes. This Agreement is to be governed and construed in accordance with the laws of the State of Washington, provided, however, that it is subject to the Federal Alcohol Administration Act and all regulations promulgated pursuant to such Act. Any controversy or claim arising out of, or relating to, this contract, or the enforcement or breach thereof shall be settled by arbitration in Walla Walla, Washington in accordance with Washington law (excluding conflict of laws provisions) and the Comprehensive Rules and Procedures of JAMS (or AAA if JAMS is not available) or its successor then in effect, and judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The decision of the arbitrator shall be final and binding on the parties. The arbitrator is not empowered to award damages in excess of compensatory damages, but shall include in the final award an allocation of attorneys' fees, costs and expenses incurred in the arbitration, whether or not such fees, costs and expenses would otherwise be recoverable under applicable statutes and rules of court. The arbitrator shall render the award in writing, explaining the factual and legal basis for decision as to each of the principal controverted issues.
  6. Force Majeure. If either party is prevented from performing any of its obligations under this Agreement because of an event beyond its reasonable control, such as, but not limited to, a strike, act of God, fire, flood, war, insurrection, riot, plant breakdown, embargo, explosion, lack of material supplies, lack of common carrier facilities, or government order or decree, the affected party shall be excused from performance for the duration of the event.
  7. Waiver. The failure or omission by either party to insist upon or enforce any of the terms of this Agreement shall not be deemed a waiver of such term unless the waiver is in writing and signed by the party against whom such waiver is sought to be enforced. Waiver of any one term shall not be deemed a waiver of any other term. Waiver of any one term on any one occasion shall not be deemed a waiver of the same term on any other occasion.
  8. Assignment. Neither this Agreement nor any of the rights or interests of WINERY hereunder may be assigned, transferred or conveyed by operation of law or otherwise, nor shall this Agreement nor any rights of WINERY hereunder inure to the benefit of any trustee in bankruptcy, receiver, creditor, trustee of, or successor to, WINERY’s business or its property, whether by operation of law or otherwise, without the prior written consent of AGENT.
  9. Confidentiality.
    1. Confidential Agreement. AGENT and WINERY agree that the terms and conditions of this Agreement are confidential and neither party will disclose, discuss, or reveal the terms of this Agreement to any other person or entity, except for legal advisors, tax advisors and as required by law. As used herein, “as required by law” means in response to a valid subpoena, while testifying in a legal proceeding, or pursuant to the order of a court having competent jurisdiction.
    2. Proprietary Information and Trade Secrets. The parties expect that, in the course of performing under this Agreement, WINERY will have access to AGENT’s proprietary information and/or trade secrets, which may include but not be limited to AGENT’s business plans, method of operations, sales data, marketing plans, Customer Data (as defined below) and other private information. AGENT retains all ownership of this information, which may not be used, publicized or disseminated by WINERY in any manner. Any unauthorized use of that data without the prior express written consent of AGENT constitutes a breach of this Agreement and is grounds for immediate termination of the Agreement by AGENT.
    3. Customer Data; Use by WINERY for Marketing Purposes. With respect to the names, contact information and other information pertaining to AGENT’s customers (“Customer Data”), such Customer Data may be stored in a database maintained or controlled by WINERY as part of its normal operations as a supplier to the Website. However, all Customer Data constitutes proprietary information and remains the property of AGENT. AGENT agrees to allow WINERY to use AGENT’s Customer Data to send marketing messages to individual customers, only if the customer has “opted-in” to receive messages sent from sources other than directly from AGENT. AGENT will offer customers the opportunity to opt-in to receive such messages via the AGENT Website and/or the AGENT telephone call-center. If a customer opts-in to receive such messages, AGENT will so notify WINERY. Customers who opt-in may be sent marketing messages from WINERY only, and not any other entity.
    4. Ongoing Obligations. These confidentiality provisions are a perpetual obligation of both parties and survive the termination or expiration of this Agreement.
  10. Notices. Any notice, demand, request, or other communication required or permitted shall be deemed to be properly given when sent by first class mail and faxed using the contact information below, or when sent by UPS, Federal Express, or certified mail with return receipt requested.
    The American Winery, LLC
    P.O. Box 1057
    Walla Walla, Washington 99362
    Attention: Lloyd Benedict, CEO
    888-ENOLOGY (phone)
    888-262-7487 (fax)
    support@americanwinery.com (e-mail)
  11. Nature of Agreement. This Agreement shall not be construed in any way to deem WINERY an agent or franchisee of AGENT for any purpose whatsoever except as explicitly set forth in this Agreement. The parties acknowledge that their relationship under this Agreement is not a relationship of franchiser and franchisee.
  12. Entire Agreement; Severability; Amendments. This Agreement constitutes the entire agreement between AGENT and WINERY concerning the subject matter herein and supersedes all prior and contemporaneous oral and written agreements between the parties. Neither party is relying upon any warranties, representations or inducements not set forth herein. In the event that any part of this Agreement is deemed invalid, or unenforceable due to no fault of either party, the remainder of this Agreement shall remain in full force and effect. This Agreement may only be amended by an instrument in writing which expressly refers to this Agreement, specifically states that it is intended to amend this Agreement, and is signed by both parties.
  13. Binding Agreement. This Agreement shall be binding upon the parties hereto and their successors.
  14. Effective Date. This Agreement shall be effective as of the date WINERY provides Electronic Signature.