INTRODUCTION:
Syrah Corporation D.B.A Winely.com ("Winely") provides you access to the Winely Service (defined below), as available through the Winely Network (as defined below), subject to your compliance with the terms and conditions below (the "Agreement"). Please read this Agreement carefully. By enrolling as an "Advertiser," you agree to be bound by these terms and conditions and the terms and conditions of any Insertion Order that you complete (either online as part of the Online Sign-Up form, or offline, when enrolling as an Advertiser, each an "Insertion Order"), including all payment terms (collectively, the "Agreement"). In this Agreement, "you" and "your" refers to the Advertiser.
1. ACCEPTABLE USE
For purposes of this Agreement, the "Winely Search Index" is the process by which consumers search for a desired subject and Advertisers bid for placement of their search listing in the search results, subject to Winely's policies, for search terms corresponding to the desired subject. The Winely Service takes the ongoing results of the bids for placement and produces search listings that are made available in connection with the Winely Network, where the "Winely Network" is defined as Winely's branded Web site at www.winely.com and various authorized third parties who may be authorized to make the Winely Service available as a link from, an add-on service to, or otherwise in connection with Web sites and/or applications (such web sites or applications a "Third Party Product") that they control. Winely does not guarantee that your search listings will be available through any part of the Winely Network, and you understand that Winely reserves the right to not place your search listing, and/or discontinue to place your search listings on any site or application within the Winely Network. A search listing, for purposes of this Agreement, may include, at Winely's discretion, text and/or graphics, and is subject to Winely's approval and the terms of this Agreement. A search listing that appears as part of the Winely Network may (or may not) include a search title, search description, website address, address and telephone numbers. In all cases information must be submitted in the form requested by Winely.
2. PAYMENT
You agree to pay Winely all applicable charges to your account in United States dollars, in accordance with the terms of the program and/or payment plan you selected, including, if any, all applicable taxes, in accordance with billing terms in effect at the time the fee becomes payable. You agree that your initial enrollment fee or service fee (depending on the program you selected) is nonrefundable. You understand and agree that, in addition to any service fee (if any), you will be charged for all clicks on your search listings, (no matter whether a click occurred on Winely's web site or a Third Party Product within the Winely Network), and that such charges will be based on the number of clicks on all your search listings, multiplied by the amount you have bid for each such search listing. If you have chosen a payment plan that provides for a fixed maximum payment per month, you understand and agree that if the number of clicks on your search listings, multiplied by the amount you have bid on those search listings, exceeds your monthly maximum payment, then your paid search listings will be removed from the Winely Service for the remainder of that month. You may pay Winely by credit card, charge card, debit card, check, money order or wire transfer. You agree and acknowledge that Syrah Corporation will appear on your monthly statement from your issuing financial institution as the merchant whenever payment is made by credit card, charge card or debit card. You agree and represent that all information you provide for the purpose of enrolling as an Advertiser will be accurate, complete and current. Your right to access your account with Winely is subject to any limits established by Winely, its contractors, or by your credit/charge/debit card issuer. If payment cannot be charged to your credit/charge/debit card, for whatever reason, or if there is a chargeback for any reason, or if you exceed your monthly maximum payment, Winely reserves the right to either suspend or terminate your account with Winely. Suspension or termination includes but is not limited to, removal of your search listings from the Winely Network. You agree that any chargeback action through your credit card company on your part will not release you of your debt. Any and all chargebacks will impose additional fees of $50.00 per chargeback plus collection, filing and legal costs.
3. ADVERTISER'S RIGHTS AND RESPONSIBILITIES
(a) Advertiser Submissions: You may submit your material for your search listing either by email, U.S. Mail, or, for search listings for the Winely search engine, at the account management center at www.winely.com/accounts.php Winely reserves the right to reject or remove any search listing at its discretion. You represent and warrant that all information, in the search listing itself or through the Web site to which the search listing links, (i) does not violate any law or regulation; (ii) does not infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (iii) does not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iv) is not false or misleading; and/or (v) is neither defamatory, libelous, slanderous or threatening. (b) Accepting Winely Suggestions: Winely reserves the right to edit or refuse any search listing at its discretion at any time. From time to time, (or as part of a particular program) Winely may provide suggestions to you for search terms, title and/or descriptions or for any other element of a search listing but the final decision to authorize any suggestion is yours. Ideas provided by Winely are only suggestions. It is your responsibility to determine whether such suggested terms comply with the requirements of Advertiser Submissions section above. By using a search term, search title, search description and/or search listing that may have been suggested by Winely, you acknowledge that such search term, search title, search description and/or search listing is in compliance with the Advertiser Submissions Section above and with this Agreement.
4. ACCEPTABLE ADVERTISING
All advertiser search index submissions must conform to the Winely Search Engine Submission Policy. Winely reserves the right to reject, or remove any advertisement at its sole discretion.
Winely does not accept advertising from companies that produce or provide pornographic products, material or services (which Winely shall have complete discretion to define), or their subsidiaries, or foundations funded by such companies whose function is to improve acceptance of such products by the public. This Agreement is voidable by Winely immediately if Customer fails to disclose (or conceals or misrepresents) any involvement with pornographic products or services. In addition, Winely may in its complete discretion refuse the use of any other advertising that it deems appropriate.
5. USAGE STATISTICS
Winely does not make any promises or guarantee that usage statistics will be equal to any published numbers at any given time. Winely shall not be held liable for claims that relate to usage statistics. Usage statistics provided by Winely are for the convenience of our users and Advertisers.
6. YOUR SITE
You hereby acknowledge that Winely is not responsible for the maintenance of your Web site(s) nor is Winely responsible for order entry, payment processing, shipping, cancellations, returns or customer service concerning orders placed on Advertiser's Web site(s). You must update your search listings if any information is not a current and accurate description of information available on your Web site. You further acknowledge that your site does not contain any Winely owned or licensed content, including but not limited to, any Winely search listings.
7 REPRESENTATIONS AND WARRANTIES
You represent and warrant that you have sufficient legal authority to enter into this Agreement. You represent and warrant that each of your search listings meets the standards and requirements of the Advertiser Rights and Responsibilities section above.
8. INDEMNIFICATION
You hereby agree to indemnify and hold harmless Winely, its information providers, licensors, licensees, consultants, contractors, agents, attorneys and employees from any and all liabilities, costs and expenses, including, without limitation, reasonable attorney's fees, that may arise from your use of the Winely Service or other Winely Web sites and/or your Web site and/or your breach of the terms of this Agreement, including, without limitation, the breach of any representation or warranty. You agree to be solely responsible for defending any claim, and for payment of damages or losses resulting from the foregoing to both a third party and Winely. Winely reserves the right to terminate or suspend the account of any advertiser that may violate any of the terms in this Agreement.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY: YOU EXPRESSLY AGREE THAT YOUR USE OF THE WINELY SERVICE IS AT YOUR OWN RISK. THE WINELY SERVICE IS AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER WINELY NOR ANY OF ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, ATTORNEYS, CONSULTANTS OR CONTRACTORS, OR ENTITIES WITHIN THE WINELY NETWORK MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE WINELY SERVICE, THE SUCCESS OF YOUR SEARCH LISTING AS MEASURED IN ANY WAY, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH WINELY AND/OR THE WINELY SERVICE OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. WINELY HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONTRACTORS, CONSULTANTS, AGENTS, ENTITIES WITHIN THE WINELY NETWORK, ATTORNEYS AND/OR EMPLOYEES OF IT ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE Winely SERVICE AND/ OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE WINELY SERVICE; AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
ANY LIABILITY OF WINELY, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS, ENTITIES WITHIN THE WINELY NETWORK, ATTORNEYS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO WINELY FOR PLACEMENT OF SEARCH LISTINGS IN THE PRIOR ONE MONTH PERIOD. IN NO EVENT SHALL WINELY, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, ENTITIES WITHIN THE WINELY NETWORK, AGENTS, CONSULTANTS, ATTORNEYS OR CONTRACTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE WINELY SERVICE AND/OR THE SITES LINKED TO FROM THE WINELY SERVICE OR FOR ANY BREACH OF WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE THAT YOU WILL NOT HOLD WINELY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE WINELY SERVICE AND/OR SITES LINKED TO FROM THE WINELY SERVICE, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM WINELY CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE WINELY SERVICE AND THOSE TO WHOM WINELY PROVIDES LINKS TO FOR CONTENT, ADVERTISING OR ANY OTHER TYPE OF DATA OR INFORMATION.
9. CANCELLATION OR TERMINATION
If you are dissatisfied with the Winely Service or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your account and cease using the service. You may cancel your participation in the Winely Service at any time by sending a message via our contact page www.winely.com/contact_us
Notwithstanding anything contained in this Agreement to the contrary, Winely may, in its sole discretion, terminate your account, and discontinue your participation in the Winely Service (or on any Web site or Third Party Product that is part of the Winely Network ), or your use of any search term or any search listing. Reasons for Winely's determination to so terminate or discontinue your account or participation as provided for above include, but are not limited to, if Winely believes that you violated this Agreement or other policies or guidelines of Winely or of a Third Party Product (or other member of the Winely Network) that uses, licenses or distributes the Winely Service, or if Winely believes your conduct may be harmful to other consumers, advertisers, users or licensees who participate in (or offer to its users) the Winely Service. All decisions made by Winely in this matter will be final and neither Winely nor its licensees (or distributors) shall have any liability with respect to such decisions.
IMPORTANT: CANCELLATION OR TERMINATION DOES NOT ENTITLE YOU TO A REFUND.
10. REFUNDS
Because of the Real-time nature of the Winely Search Index there are absolutely no refunds once an advertising account has been submitted.
11. USE OF WINELY SERVICE SUBMISSIONS
By submitting material to the Winely Service (including information for a search listing) you are irrevocably granting Winely, its licensees, and any entities in the Winely Network, the right to use all parts of the material, without limitation, as if it were in the public domain, including modifying it or using it commercially and authorizing others to do so.
12. NOTICES
Winely may give general notices to you by posting on the Winely Service or www.winely.com or any one of Winely's Web sites, if possible, by electronic mail to your email address. You may give notice to Winely by email via our contact page www.winely.com/contact_us
13. GOVERNING LAW AND JURISDICTION
This Agreement will be governed by the laws of the United States and the State of Nevada, without reference to rules governing choice of laws. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Any dispute relating to this Agreement shall be subject to the exclusive jurisdiction of the Nevada state courts and you irrevocably consent to the personal and exclusive jurisdiction of such courts.
14. FORCE MAJEURE
Winely shall not be liable to Advertiser or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, storm, or other similar occurrences; any law, order, regulation, direction, action or request of the United States government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lockouts, or work stoppages or other labor difficulties; Winely failures, shortages, breaches or delays.
15. ASSIGNMENT
You may not assign, sublicense, transfer or otherwise convey this Agreement or any of your rights hereunder, or delegate any of your duties, in whole or part, whether voluntarily, by operation of law or otherwise (including, without limitation, pursuant to a change of control), without our prior written consent, which may be withheld in our sole discretion. Any attempted or purported assignment, sublicense, transfer, conveyance or delegation by you other than in accordance with this Section shall be null and void. We shall have the right to assign, sublicense, transfer or otherwise convey this Agreement or any of our rights hereunder to any third party and delegate any of our obligations hereunder to such third party. Any such assignment by us shall be without further liability or recourse to us. Subject to the foregoing, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
16. WAIVER
Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement, nor will any delay or omission on our part to exercise or avail ourselves of any right or remedy that we have or may have hereunder operate as a waiver of any right or remedy. No waiver of any provision or right granted hereunder shall be effective unless set forth in a written instrument signed by us.
17. SEVERABILITY
In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom.
19. MODIFICATIONS
We may modify any of the terms and conditions contained in this Agreement, at any time in our sole discretion. In such event, you will be notified either by email or by a change notice or a new agreement that will be posted on the www.winely.com Site. Modifications may include, but are not limited to, changes in the scope of advertising program, changes to placement of advertising positions, payment procedures, and advertisement standards. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE WINELY SERVICE FOLLOWING OUR EMAIL OR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR WINELY.COM SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE TO THIS AGREEMENT.