Terms of Service
Effective Date: March 18, 2019
Welcome to GrapeConnect, the premier on-line wholesale marketplace for the wine industry. Please read these Terms of Service carefully because they represent a binding agreement between GrapeConnect and you.
The terms “GrapeConnect,” “we,” “us,” and “our” refer to WINECONNECT LLC d/b/a GrapeConnect, and the terms “you” and “your” refer to you as a Subscriber and user of our websites, mobile and other online applications and products and services.
- Clarifying Our Role. The role of GrapeConnect is to facilitate introductions between sellers and buyers using the GrapeConnect Platform. We are not a party to any contract between a seller and a buyer resulting from utilizing the GrapeConnect Platform and we do not own or take title to or possession of any Products. Information about a particular Product listing is supplied by the seller, not by GrapeConnect. The price and other terms of any sale remain subject to direct negotiation between the buyer and the seller.
2.1. Though we hope that all who come to GrapeConnect will act honorably and treat each other fairly, we cannot verify the information that sellers supply or guarantee the Products they offer. Nor can we assure the seller of Products that they will receive payment from the buyer. When using GrapeConnect to find a buyer for your Products or to identify Products to purchase, we urge you to use the same common sense and good judgment you would use in selling Products through, or responding to, a classified ad in the newspaper or trade publication. Please be aware of the potential of fraud before you buy or list Products on GrapeConnect. There is no substitute for healthy skepticism and your own good judgment.
- Registration. As part of the registration process, you will be required to select a user name and a password. You agree that the information you supply during that registration process will be accurate and complete, and that you will not register under the name of another person. Failure to provide accurate and timely information may result in your account being closed and/or your access to content provided through your account being suspended, discontinued, or removed. We reserve the right to disallow use of a user name that we deem offensive or inappropriate. You will be responsible for preserving the confidentiality of your password and for all actions of persons accessing GrapeConnect through any username/password assigned to you. You will notify GrapeConnect’s Customer Service Manager of any known or suspected unauthorized use of your account.
- Potential for Errors. The material that appears on the GrapeConnect Platform is for general informational purposes only. While we aim to provide a site that is useful, be mindful that GrapeConnect may, from time to time, contain errors. GrapeConnect includes materials and information collected from and provided by third parties that we may not have evaluated or reviewed. We make no guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the materials or information on GrapeConnect, and you should not rely on it without independent verification. We invite you to bring to our attention any materials or information on GrapeConnect that you believe to be inaccurate. Please forward a copy of the materials or information to our Customer Service Manager, along with an explanation of the inaccuracies.
- Certain Definitions. The following definitions apply for purposes of these Terms of Service.
6.1. “Subscriber” means any registered subscriber authorized by us to access and use the GrapeConnect Platform in any subscription plan, including Basic (and Trial), Pro and Partner.
6.2. “Products” means any of the following: bulk wine, bulk grapes, bulk grape juice, bottled wine (also known as shiners or case goods).
6.3. “GrapeConnect Platform™” refers both to the GrapeConnect Marketplace™ and the other GrapeConnect Services accessible to Subscribers.
6.4. “GrapeConnect Services” refers to the services listed on the “Pricing” page with respect to the applicable subscription plan that are made available by us to you on a Software-as-a-Service basis.
6.5. “GrapeConnect Marketplace™” refers to (A) the cloud-based marketplace where Subscribers can add listings to promote Products they wish to sell and Subscribers can search and locate Products they wish to sample and purchase; and (B) the suite of tools that we provide to connect buyers and sellers of Products through the marketplace.
6.6. “Seller’s Service Fee” refers to the fee charged by us to sellers who sell Product through the GrapeConnect Marketplace. The Seller’s Service Fee is a percentage of the gross sales price of the Product. The Seller’s Service Fee for each subscription plan is indicated on the “Pricing” page.
- Fees and Payments
7.1. Monthly Plans: Upon signing up for the Basic subscription plan, you will be able to use GrapeConnect Services for a 14-day trial period for free (the “Trial Period”). You may cancel at any time through your account at no charge up through the last day of the Trial Period. If you do not cancel during the Trial Period, you will commence the paid monthly subscription term as of the first calendar day immediately following the end of the Trial Period. At the end of your Trial Period, if you signed up for the Basic subscription plan, or at the time you sign-up for a Pro subscription plan, the first date of your paid subscription term is your “Subscription Start Date,” and you will be responsible to pay the applicable subscription fees for your subscription plan on that date. Thereafter, your subscription will automatically renew for successive one (1)-month periods, and you shall be responsible to pay the fees, on each monthly anniversary of Your Subscription Start Date (each a “Monthly Subscription Billing Date”), unless you cancel your subscription through your account prior to the end of the then-current subscription term. You may upgrade or downgrade your plan at any time through your account. Any such change in your plan made by you through your account will take effect immediately, and you will be promptly charged a pro rata amount for any increase in the applicable fees for your newly elected plan (i.e., an amount equal to your plan’s current remaining partial and/or unused day(s) at the applicable fee level for the newly selected plan, less the fee already paid for your original plan) on the next available billing date. Any change in your plan will not, however, change your Monthly Subscription Billing Date. Thereafter, you will be billed the new fees on Your Monthly Subscription Billing Date for each subsequent renewal term.
7.2. Annual Plans: Upon subscribing to an annual subscription plan, you will pay for the applicable plan subscription fees up front by credit card or invoice. If you choose to be invoiced, GrapeConnect will provide net thirty (30)-day payment terms. Your initial subscription term will run for a period of one (1)-year from your subscription start date (“Subscription Start Date”). Thereafter, your subscription will automatically renew for successive one (1)-year periods, and you will be charged the applicable subscription fees, on each annual anniversary of your Subscription Start Date (each an “Annual Subscription Billing Date”), unless you cancel your subscription through your account prior to the end of the then-current subscription term. You may upgrade or downgrade your subscription plan at any time through your account. Any such change in your subscription plan made by you through your account will take effect immediately, and you will be promptly charged a pro rata amount for any increase in the applicable subscription fees for your newly elected plan (i.e., an amount equal to your plan’s current remaining partial and/or unused month(s) at the applicable fee level for the newly selected plan, less the fee already paid for your original plan) on the next available billing date pursuant to the payment terms set forth above. Any change in your plan will not, however, change the term of your Annual Subscription Billing Date. Thereafter, you will be billed the new fees on your Annual Subscription Billing Date for each subsequent renewal term.
7.3. Plan Limits. If you use any features that are only included in a subscription plan that is higher-priced than your subscription plan, or if you otherwise exceed the allowable limits of your subscription plan, GrapeConnect reserves the right to automatically upgrade your plan to the appropriate higher-priced plan and charge you the applicable fees for that plan effective as of the date you use such feature(s) and/or exceed the limits of your current plan. GrapeConnect may, but is not obligated to, contact you to warn you if you have exceeded the included features, limits or other terms of your subscription plan. Notwithstanding the foregoing, you are solely responsible for reviewing the GrapeConnect website, your use of the services, and remaining aware of the limits of your subscription plan.
7.4. Changes; Payments; Taxes. We reserve the right to change our subscription and service fees and to institute new charges at any time (including, for clarity, for any subscription renewal), upon notice to you, which may be sent by email or posted on our website. Your use of the GrapeConnect Platform following such notification constitutes your acceptance of any new or increased fees. All payments shall be made in U.S. Dollars and, when paid, are non-cancelable, non-contingent and non-refundable, except as otherwise provided herein. We are not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees arising from or related to charges billed by us. All payments hereunder are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and you agree to bear and be responsible for the payment of all such amounts, excluding taxes based upon GrapeConnect’s income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
7.5. Billing and Payment Information. When you register as a Subscriber, you must provide GrapeConnect with accurate and complete billing information including legal name, address, state, zip code (if applicable), telephone number, and a valid credit card if subscribing to a monthly plan or opting to pay an annual plan via credit card. By submitting such credit card information, you give GrapeConnect permission to charge all fees incurred through your account to the designated credit card. GrapeConnect reserves the right to terminate your subscription and deny you access to the GrapeConnect Platform if our charges to your credit card are denied or reversed, or if you fail to pay invoices when due, as applicable.
7.6. No Refunds Except as expressly provided below in this Section, or as otherwise agreed to by GrapeConnect in its sole discretion, there are no refunds or credits for partial subscription terms of Services, upgrades or downgrades, or unused subscription terms.
- Your Obligations and Understandings as a Seller of Products.
8.1. Listing. If you list Products for sale on the GrapeConnect Platform, you agree:
8.1.1. to provide accurate and complete information for all listings and any supporting information that may be reasonably requested by us regarding the marketing, advertising, promotion and sale of Products;
8.1.2. to provide Product samples free of charge to Subscribers submitting acceptable requests via the GrapeConnect Platform;
8.1.3. to keep accurate records of all sales of Products you’ve listed on the GrapeConnect Platform to purchasers that contact you or request samples from you through the GrapeConnect Platform;
8.1.4. to notify us within five (5) days of the date you reach agreement with a purchaser to purchase Products you listed on the GrapeConnect Platform (the “Sale Date”); and
8.1.5. to pay the Seller’s Service Fee to GrapeConnect within fifteen (15) days of the Sale Date, regardless of when you receive payment from the purchaser;
8.1.6. not to charge any potential buyer for information about any Products listed for sale on GrapeConnect; and
8.1.7. not to use GrapeConnect to promote, without our prior written permission, any other website, product, or service.
8.2. Off-Platform Promotion. When you list Products for sale through GrapeConnect, we may obtain additional distribution for your listing through our relationships with other websites. We also may promote your listing on or through third-party websites or services. Neither GrapeConnect nor any website through which we distribute or promote your listing will charge you any additional fee for this additional exposure. It is simply added value from GrapeConnect. Our promotional partners will not contact you with offers to sell you additional distribution or add-on advertising services for your listing without your permission. If third parties contact you without your permission offering to sell you such services, they have likely misused GrapeConnect and violated these Terms of Service to exploit your listing information. If you receive any such solicitations that you did not authorize, please bring them to our attention by emailing us.
8.3. Good Business and Fair Dealing. You alone are responsible for the material you post, including listing information and photos of your Products, and for the content of all email messages you transmit through GrapeConnect. Nothing will undermine a user’s confidence in the Products you are looking to sell faster than inaccurate statements or misleading representations about your Products. And since any erosion of user confidence in you is likely to be accompanied by erosion of user confidence in us, we care deeply about making sure that the information you supply is accurate and that, in all respects, you treat other users of GrapeConnect fairly and honorably.
8.4. No Guarantee of Sale. You acknowledge that the subscription fee and the price of any advertising upgrades that you pay to us does not guarantee that you will be successful in selling your Products on GrapeConnect and will not be refunded.
8.5. Random Quality Assurance Testing. In connection with our efforts to combat Internet fraud, all listings are screened before being posted publicly. This process may delay the publication of your listing. Though we cannot monitor every transaction that originates through a listing on GrapeConnect, we may, from time to time, perform random quality assurance tests to confirm that those who offer Products for sale on the GrapeConnect Platform are prepared to sell those Products at the prices and on the terms which are advertised. You agree to cooperate in these quality assurance tests. If our tests reveal, or we otherwise learn, that you may be violating the terms of these Terms of Service, we reserve the right to remove your listings from GrapeConnect and deny you further use of services offered on GrapeConnect and any affiliated websites.
8.6. Off-Platform Sales. By listing Products for sale on GrapeConnect, you agree to use the email addresses of those responding to your listing only to communicate with them about the potential sale of the Products listed. If you sell Products that you have not listed on GrapeConnect to buyers that contact you to inquire about Products that you have listed on GrapeConnect (“Off-Platform Sales”), you must notify us within five (5) days of the Sale Date and pay the Seller’s Service Fee on the Off Platform Transactions within 15 days of the Sale Date.
- Your Obligations and Understandings as a Buyer of Products.
9.1. Understanding all Fees and Charges. The prices listed by sellers on GrapeConnect often exclude shipping, container, and miscellaneous other fees, any or all of which may be added to the listed price to arrive at the final sale price of a particular deal. Before purchasing the Products that you have seen listed on GrapeConnect, you should confirm with the seller any information, including the price that is important to your purchasing decision. GrapeConnect is not responsible for, and does not guarantee the quality of, any Products listed on GrapeConnect.
9.2. Certification. Some of the Products listed on GrapeConnect may be “certified” as meeting certain standards established by lab testing facilities. The decision to certify any particular Product listing is made by the seller and certifying facility, and the Product information included in GrapeConnect’s listings are provided by the seller. GrapeConnect is not responsible for the accuracy of any information contained in any such certification. You should familiarize yourself with the terms of the applicable certification standards before buying certified grapes, juice, bulk wine, and shiners.
9.3. Testing. If you choose to pay for lab testing through a third-party website for Products that you are interested in buying, remember that testing is not a warranty. Although testing can be of significant value in the purchase of Products, testing is not a guarantee that the inspected grapes, juice, bulk wine, and shiners are free from defects or that the testers have identified all existing defects. Before you purchase lab testing services, you should confirm with the lab the location at which the test will be conducted. You are responsible for coordinating and arranging the test. You release GrapeConnect and our affiliates from any damages that you may incur, and agree not to assert any claims against us, arising from your purchase or use of third-party supplied products and services.
9.4. Notification of Purchase. If you purchase Products that are listed on the GrapeConnect Platform, you agree to notify us of such purchase and the details (seller, Product description, quantity, price and settlement date) within five (5) days after the Sales Date, even if the seller asks you not to.
- Third Party Goods and Services. Although we make available links to the websites of third-party providers of products and services, we are not responsible for the prices, terms, quality, reliability, or performance of the products or services provided by them. Your correspondence or business dealings with, or participation in the promotions of, vendors or other third parties found on or through GrapeConnect, including payment and delivery of goods or services and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. We are not responsible or liable for any loss or damage incurred as the result of such dealings with or the presence of such third parties on GrapeConnect.
- Ownership and Permissions
11.1. Copyright. The materials on GrapeConnect are the property of GrapeConnect or its licensors, and are protected by U.S. copyright laws, other copyright laws, and international conventions. Except as explicitly provided in these Terms of Service, you may not distribute, transmit, display, reproduce, modify, create derivative works from, or otherwise exploit any of the materials on GrapeConnect. You may display and occasionally print a single copy of any page of GrapeConnect for your personal, non-commercial use, but you may not otherwise reproduce any material appearing on GrapeConnect without the prior written consent of the owner of such materials. You may not store any significant portion of, nor distribute copies of, materials found on GrapeConnect, in any form (including electronic form), without prior written permission from the owner of such materials. Requests for permission to reproduce or distribute materials found on GrapeConnect should be sent to our Support Team, GrapeConnect, 2791 Orion Drive, Decatur, GA 30033 or to Customer Service.
11.2. Hypertext Links. You are free to establish a hypertext link to GrapeConnect so long as the link does not state or imply any endorsement or sponsorship of you, your company, or your website by GrapeConnect or any of our affiliates. However, without our prior written permission, you may not frame any of the content of GrapeConnect, nor incorporate into another website or service any intellectual property of GrapeConnect or its licensors. Requests for permission to frame our content or use our content in any way that is not expressly described in these Terms of Service should be sent to our Customer Service Manager, either by email or to the mailing address above.
11.3. Trademarks. GrapeConnect and the GrapeConnect logo are all trademarks owned by us or our licensors. The names of other products and services referred to on GrapeConnect may be the trademarks of their respective owners. You may not use any trademark or service mark appearing on GrapeConnect without the prior written consent of the owner of the mark.
11.4. License. You acknowledge that by transmitting or posting any material on or through GrapeConnect, you grant us, or anyone authorized by us, an unrestricted, non-exclusive, worldwide, royalty-free, perpetual, irrevocable, license to use, modify, perform, display, broadcast, reproduce, create derivative works from, transmit, sell or otherwise use, exploit or distribute, at no cost whatsoever, all such material (including, without limitation, all intellectual property rights embodied therein), in whole or in part, in any manner or medium (whether now known or hereafter developed), for any purpose. The foregoing license includes the right to exploit any proprietary rights in such material, including, but not limited to, rights under copyright, trademark, or patent laws that exist in any applicable jurisdiction. Also, in connection with the exercise of these rights, you grant us and anyone authorized by us, the right to identify you as the author of such material by name, email address or user name, and to use your image and likeness if provided, in connection with such material. You will not receive any compensation of any kind for the use of any material you transmit or post via GrapeConnect. Among other uses of user materials, GrapeConnect uses listings data to derive useful information (such as varietal pricing information information) for display, sale and distribution.
11.5. Limited Use. By accessing GrapeConnect, you agree not to use information concerning other Subscribers or Products they have listed or searched for on GrapeConnect (including listing information, user names, email addresses, telephone numbers, and/or other information), for any purpose other than to explore the potential purchase or sale of listed Products.
- Termination. You agree that we may, under some circumstances and without prior notice to you, terminate your use of and access to the GrapeConnect Platform. Some of the reasons for such termination may include, but are not limited to, (a) a breach or violation or suspected breach or violation of these Terms of Service or other incorporated terms or guidelines, (b) a request by law enforcement or another government agency, (c) our decision to discontinue or change all or part of GrapeConnect, (d) technical or security issues, and (e) fraudulent or illegal activities. All terminations will be made in our sole discretion and you agree that we will not be liable for any termination of your use of or access to GrapeConnect.
- Notice of Copyright Infringement. If you are an owner of intellectual property who believes your intellectual property has been improperly posted or distributed via GrapeConnect, please notify us by sending an email to firstname.lastname@example.org or by sending a notice by U.S. Mail to: GrapeConnect, 2791 Orion Drive, Decatur, Georgia 30033, Attn: Legal Department/Copyright. Your notice to us must include the following information: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyrighted work allegedly infringed; (2) a description of the copyrighted work or works that allegedly have been infringed; (3) a description of where on GrapeConnect the allegedly infringing material appears that will allow us to locate the material; (4) your contact information, including your address, telephone number, and, if available, email address; (5) a statement by you that you have a good faith belief that the allegedly infringing use has not been authorized by the copyright owner, its agent, or the law; and (6) a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.
- User Content
14.1. Third Party Tools. GrapeConnect allows users to publish listings, ratings, and reviews and to access social media tools where users may post material accessible to others or transmit communications to others. Some of these tools may be operated by third parties, and your use of them is subject to both the terms of these Terms of Service and to the policies of their third-party providers.
14.2. Reliance. It is your sole responsibility to verify any information on the GrapeConnect Platform before relying on it. You agree that any sale or purchase will be made solely in reliance upon your own enquiries, inspections, tasting and analysis of the Products to the extent, if any, that you have chosen to make; and that we have not made any representations to you about the truth and accuracy of listings or other advertisements, the suitability, quality or existence of listings or the ability of users to actually enforce or complete a transaction. We do not warrant the truth of any representation made by the sellers nor do we warrant that sellers are the legal owners of the Products listed. You agree that negotiations and all other contact between you and other users of the GrapeConnect Platform are conducted entirely at your own risk.
14.3. Restrictions. When publishing anything to GrapeConnect or using any social media tools or interactive features, you agree that you will not post or transmit:
14.3.1. any copyrighted material unless you own or control the copyright in and to such material;
14.3.2 material that is: knowingly false and/or defamatory, inaccurate, libelous, tortuous, abusive, vulgar, hateful, racist, bigoted, sexist, harassing, threatening, inflammatory, obscene, profane, sexually oriented, invasive of a person’s privacy, or is otherwise objectionable or in violation of any applicable law, rule, or regulation;
14.3.3 material that violates or infringes the rights of any other party, including, without limitation, rights of privacy, rights of publicity, copyright, trademark, or other intellectual property rights;
14.3.4 profanity in subject lines, messages, or signatures;
14.3.5 any material containing viruses, Trojan horses, worms, or any other disruptive or harmful component;
14.3.6 material that breaches another’s privacy, i.e., containing phone numbers, addresses, or other personal information;
14.3.7 spam, including, but not limited to, junk mail, chain letters, unsolicited bulk email or duplicative messages, excessive cross-postings, and material that is unrelated to the forum in which it is posted;
14.3.8 material that contains advertisements or commercial solicitations; or
14.3.9 material discussing illegal activities or linking to websites that deal with such activities.
- Prohibited Activity. You further agree that you will not attempt or do any of the following:
15.1. interfere with or disrupt GrapeConnect or our computer systems, servers, or networks;
15.2. attempt to gain unauthorized access to any part of GrapeConnect, to accounts that belong to other users, or to computer systems or networks connected to GrapeConnect;
15.3. engage in any systematic extraction of data or data fields, including, without limitation, email addresses, by use of any automated mechanism, such web robots, crawlers, or spiders or otherwise;
15.4. collect information about others without their consent;
15.5. interfere with the use of GrapeConnect by any other individual or party;
15.6. impersonate any person, or otherwise attempt to mislead others about your identity, or post material under secondary user names or other aliases; or
15.7. share any user name and/or password you have on GrapeConnect with any other persons.
- Consequences. Without limiting any of GrapeConnect’s other rights or remedies, a violation of any of the above may result in the removal of any content you have transmitted or posted, revocation of any accounts you have on GrapeConnect or on our affiliated websites and services, and/or a ban from creating new accounts.
- Limited Monitoring. Although GrapeConnect cannot monitor all of the listings and content posted to GrapeConnect, we reserve the right (but assume no obligation) to delete, move, condense or edit any ads, ratings, reviews, content or other postings that come to our attention that we consider unacceptable or inappropriate, whether for legal or other reasons. We retain the right to deny access to anyone who we believe has violated these terms or any other term of these Terms of Service. We will not, in the ordinary course of business, review the content of private electronic messages that are not addressed to us. However, we may occasionally monitor such communications as we believe is appropriate to comply with applicable laws, respond to legal process or a law enforcement request, to enforce these Terms of Service , or to protect the rights, property or safety of Subscribers, our advertisers, the public, us or our affiliates. Notwithstanding the foregoing, GrapeConnect takes no responsibility and assumes no liability for any content posted to GrapeConnect by you or by third parties.
- Disclaimer of Warranties; Limitation of Liability; Indemnification
18.1. IF YOU RELY ON GRAPECONNECT OR ANY INFORMATION, PRODUCT, OR SERVICE AVAILABLE THROUGH GRAPECONNECT, YOU DO SO AT YOUR OWN RISK. YOU UNDERSTAND THAT THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, INACCURACIES, AND/OR OTHER PROBLEMS WITH THE INFORMATION, PRODUCTS, AND SERVICES PUBLISHED ON OR PROMOTED THROUGH GRAPECONNECT. GRAPECONNECT IS PROVIDED TO YOU “AS IS.” GRAPECONNECT AND ITS AFFILIATES, AGENTS, AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH GRAPECONNECT (OR ANY INFORMATION, PRODUCTS, OR SERVICES THAT ARE REFERRED TO, ADVERTISED OR PROMOTED ON, OR SOLD THROUGH GRAPECONNECT). NOR DO WE OR THEY GUARANTEE THAT GRAPECONNECT WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT GRAPECONNECT WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GRAPECONNECT AND ITS AFFILIATES, AGENTS, AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIMS, ACTIONS, OR JUDGMENTS ARISING OUT OF OR RELATED TO ANY CONTENT POSTED TO GRAPECONNECT BY YOU OR ANY THIRD PARTY.
18.2. UNDER NO CIRCUMSTANCES WILL GRAPECONNECT OR ITS AFFILIATES, AGENTS, OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES ARISING OUT OF YOUR USE OF GRAPECONNECT OR ANY PRODUCT OR SERVICE LINKED TO OR FROM OR ADVERTISED OR PROMOTED ON GRAPECONNECT, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS, AND LOSS OF DATA), EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIABILITY OF GRAPECONNECT AND ITS AFFILIATES, AGENTS, AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM ARISING OUT OF OR OTHERWISE RELATING TO GRAPECONNECT WILL NOT EXCEED THE AMOUNT YOU PAID, IF ANY, FOR THE USE OF GRAPECONNECT OUT OF WHICH SUCH LIABILITY ALLEGEDLY ARISES. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, YOU AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, TORTIOUS, OR ILLEGAL CONDUCT BY YOU OR ANY OTHER PARTY OR ANY INFRINGEMENT OF YOUR OR ANOTHER’S RIGHTS ARISING FROM OR IN CONNECTION WITH GRAPECONNECT.
18.3. 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 DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY.
18.4. YOU AGREE TO INDEMNIFY GRAPECONNECT AND ITS OWNERS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, PARTNERS, AND LICENSORS, AND HOLD THEM HARMLESS FROM ANY AND ALL CLAIMS AND EXPENSES, INCLUDING ATTORNEY’S FEES, ARISING FROM OR RELATED IN ANY WAY TO YOUR USE OF GRAPECONNECT OR ANY BREACH OF THESE TERMS OF SERVICE .
- Mandatory Dispute Resolution
19.1. Claims. You and Grapeconnect agree that any claims or disputes (“Claims”) that arise out of or relate in any way to the terms of service, Grapeconnect, or any service (including but not limited to billing disputes) shall be resolved by final and binding arbitration or in small claims court. In arbitration, there is no judge and no jury. Instead, Claims are decided by an arbitrator whose authority is created by and governed by this arbitration agreement. Review of arbitration awards in the courts is very limited.
19.2. Class Action Waiver. You and Grapeconnect agree that all claims between us will be resolved in an individual arbitration. We both agree that there will be no class, representative, or consolidated actions in arbitration. In addition, neither you nor GrapeConnect may participate in a class or representative action in court as a class member if the claims asserted in the litigation would fall within the scope of this arbitration agreement if asserted directly by you or GrapeConnect. To be clear, you and GrapeConnect both waive any right to participate in any class action involving disputes between us. This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the Jury Trial Waiver set forth in Section 19.e of these Terms of Service will remain in full force and effect.
19.3. Arbitrator Authority. The arbitrator’s authority is governed by this arbitration agreement. You and GrapeConnect agree that the arbitrator may award the same relief that a court of competent jurisdiction could award – consistent with and limited by the Terms of Service (including the limitations of liability set forth in Section 18), but the arbitrator may not award declaratory or injunctive relief that extends beyond you and your dealings with GrapeConnect. An arbitrator may award attorneys’ fees and costs to the prevailing party if a court would be authorized to do so under the applicable law.
19.4. Arbitration Procedures. You and GrapeConnect agree that your agreement affects interstate commerce, and the Federal Arbitration Act applies. All arbitrations shall be conducted by JAMS Endispute under its Streamlined Arbitration Rules and Procedures (“JAMS”). These Rules are available on the JAMS website at http://www.jamsadr.com or by calling 1.800.352.5267. If there is a conflict between the JAMS Rules and this arbitration agreement, then this arbitration agreement shall control. GrapeConnect will pay all filing fees and costs associated with commencing an arbitration, but you will be responsible for paying your own attorneys’ fees (if you chose to use an attorney in arbitration) unless you prevail in the arbitration and the arbitrator finds that you are entitled to recover your fees under the law. Except for claims determined to be frivolous, GrapeConnect agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law. If you bring an arbitration against GrapeConnect, the arbitration hearing will be held in your hometown area, unless we both agree on a different location.
19.5. Waiver of Jury Trial. You and GrapeConnect expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that if for any reason the mandatory arbitration provisions contained herein are not enforced or is found inapplicable, our claims against each other will be resolved by a judge rather than a jury.
- Governing Law. These Terms of Service has been made in, and will be construed in accordance with the laws of, the State of Georgia, without regard to its choice of laws rules.
- Report Violations. Please report any violations of these Terms of Service to our Customer Service Manager.