Effective Date: November 12, 2018
In consideration for Treasury Wine Estates Americas Company. (“TWE” or “we” “our”, or “us”), permitting any and all users (“you” or “Participant”) to create, upload, display, publish and/or submit their messages, text, posts, Tweets, images, photos, comments, music, videos or other content (collectively, “User Content”) featuring TWE products, services or otherwise mentioning TWE or related alcoholic products and services, you agree to these TWE Social Aggregation Tool [#My19CrimesWine] User Content Submission Program Terms and Conditions (“Terms”). When you grant permission to TWE to use your User Content by interacting with the TWE aggregation tool (the “Application”) on social media platforms, including, without limitation, Facebook, Instagram and Twitter and/or through utilization of the ‘approval’ hashtag [#My19CrimesWine], you are entering into a binding agreement with TWE on the terms set forth below:
1. Prohibited User Content: As a Participant, you shall not submit any User Content that:
a. is known by you to be false, deceptive, inaccurate, misleading or deceitful;
b. infringes, encourages or depicts the infringement of another party’s rights, including, without limitation, any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
c. violates, encourages or depicts the violation of any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising) or that encourages or depicts conduct that constitutes a criminal offense or may result in civil liability;
d. is, or may reasonably be considered to be abusive, defamatory, libelous, indecent, hateful, racially or religiously biased or offensive, slanderous, indecent, obscene, lewd, lascivious, filthy, pornographic, sexually explicit, unlawfully threatening or unlawfully harassing to TWE or any third party in any way; or that encourages anyone to break any local, state, national or international law;
e. is or contains advertising, promotional material or promotes a product, service or other commercial activity
(other than TWE), including any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
f. includes, demonstrates or encourages the misuse of a product or a hazardous situation;
g. impersonates or attempts to impersonate TWE or any of its employees, another user, or person or entity
(including, without limitation, the use of e-mail addresses associated with any of the foregoing);
h. includes any information that references other websites or personally identifiable information (e.g., first and last name, addresses, email addresses, contact information or phone numbers);
i. contains any computer viruses, Easter eggs, worms, bots, Trojan horses, spyware or other potentially damaging malware, technologies, computer programs or files or malicious code that could impact the operation of the Application or any computer or other device;
j. includes the submission of an idea or suggestions of new products;
k. sells a product or service of any type, including advertisements of any kind, including competitor advertisements, item sale, solicitation, or self-promotion;
l. has been posted by anyone under the age of 21;
m. is off-topic or irrelevant;
n. is unintelligible; or
o. is otherwise objectionable or inappropriate.
If you submit User Content that TWE believes violates these Terms, then we reserve the right, but have no obligation, to take any legally available action that we deem appropriate, in our sole discretion, including, without limitation, editing, removing, deleting, taking down or otherwise erasing your User Content, at any time, without notice for any reason whatsoever. However, we are not obligated to take any action not required by law. We are not responsible or liable for the conduct or content of any Participant. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Please exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities. For purposes of certainty, other than Participant’s own User Content, Participant may not make any commercial, or any other, use of User Content submitted without TWE’s prior written approval. TWE reserves the right, in its sole and absolute discretion, to remove without notice, or refuse to post in the first instance, any User Content.
2. Maintain Appropriate Rights in Your User Content: With respect to all User Content that you submit to us, you represent and warrant that the material is either fully original to you or that you have all the necessary rights, licenses, permissions, clearances and consents needed from third parties in order for you to submit your User Content (including, but not limited to, all copyright and right of publicity and privacy rights) for you to comply with the terms of this Agreement. Your User Content should not contain any visible logos, phrases, or trademarks that belong to third parties (other than TWE). Do not use any User Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet or other source. If anyone contributes to your User Content or has any rights to your User Content, or if anyone appears in the User Content, then you must also have their permission to submit such User Content to TWE. (For example, if someone has taken a video of you and your friend, and you submit that video to TWE as your User Content, then you must obtain your friend’s and the videographer’s permission to do so.) We may require, at any time, proof of the permissions referred to above in a written form acceptable to us.
3. Non-Confidentiality of Your User Content: You agree that: (a) your User Content will be treated as nonconfidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) TWE does not assume any obligation of any kind to you or any third party with respect to your User Content. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk.
4. No Unsolicited Submissions: Please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for alcoholic products, music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Application are deemed User Content and licensed to us as set forth in these Terms. In addition, TWE retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. TWE’s receipt of your Unsolicited Ideas and Materials is not an admission by TWE of their novelty, priority, or originality, and it does not impair TWE’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials. Each Participant acknowledges that other participants may have created ideas and concepts contained in their User Content that may have familiarities or similarities to his/her own User Content, and that he/ she will not be entitled to any compensation or right to negotiate with TWE because of these familiarities or similarities. Notwithstanding any custom and practice to pay an individual for an idea (if any), nothing herein shall create an implied or express contract to compensate entrants for their User Content and there is no obligation for TWE to pay or otherwise compensate Participants for any of their ideas or materials in any communications with TWE, whatsoever.
5. Must be of Legal Drinking Age to Participate: By submitting your User Content, you confirm that you are at least twenty-one (21) years of age.
6. Participant’s Grant of a Non-Exclusive License to TWE for Use of User Content and Name and Likeness Rights: Participants retain ownership of his/her User Content (but excluding the TWE Content (defined below)), and grant TWE a non-exclusive license as further detailed below. As consideration for the possibility of publicity and use of any TWE Content or content tools for purposes of developing Participant’s User Content (“Content Tools”), upon Participant’s submission of User Content, Participants irrevocably grant to TWE, and each of its licensees, sublicensees, successors and assigns, the non-exclusive, perpetual, royalty-free, no-cost license and right to use and otherwise exploit Participant’s User Content, and all code, content, and other materials depicted therein, in whole or in part, in any manner or medium now or hereafter known or devised (including, without limitation, CDs, streaming media, film, television, videocassettes, print, interactive devices, mobile media, Internet and on-line systems), throughout the universe and in any and all languages, including, without limitation, the right to display, reproduce, record, perform, exhibit, distribute, copy, edit, change, modify, add to, subtract from, re-title and adapt the same, to combine it with other material and to synchronize it with audiovisual materials and to otherwise use and exploit it. TWE and its successors, assigns, licensees and sublicensees (which sublicensees may, include, without limitation, other Participants), will have the right to make unlimited derivative works therefrom, to assign or transfer any or all such rights and to grant unlimited, multiple-level sublicenses with no obligations to you, whether financial, credit, approval of changes or otherwise. Without limiting the forgoing, TWE will have the right to use all literary materials and other intellectual property contributed by Participant to User Content, including, without limitation, the characters, and all other images depicted therein, in any merchandising, advertising, marketing, promotion or for any other commercial or non-commercial purpose with no financial or other obligations to Participants. Participants hereby forever waive and relinquish all so-called “moral rights (droit moral)” now or hereafter recognized. Participants also irrevocably grant TWE the right to use their name, username, Twitter handle, profile picture, voice, likeness and biographical material in connection with any and all TWE advertising and promotional campaigns, including, without limitation, on the TWE website or in connection with TWE products and marketing materials (the “Campaign”) and User Content, and derivative works thereof, including, without limitation, in credits (which said credit(s), if any, will be at TWE’s sole discretion, provided TWE otherwise makes good faith efforts to comply with any third party platform’s display requirements), advertising, publicity and exploitational material. Participants agree that neither TWE nor its or their agents shall be responsible for return or preservation of User Content submitted or any elements thereof. In addition, Participants agree that TWE shall have the sole discretion in determining the extent and manner of the use of the User Content, and all elements thereof, in whole or in part, and that TWE is not obligated in any way to use or exploit same or anything else granted herein or any portion thereof in any medium or any manner. Participants agree that all goodwill that arises in connection with your use of TWE’s trademarks inures exclusively to TWE and you agree not to challenge TWE’s ownership or control of any TWE trademarks, nor use or adopt any trademarks that might be confusingly similar to such TWE trademarks.
7. TWE’s Grant of a Non-Exclusive License to Participants to Use TWE Content in connection with Participant's Development of User Content: Participants are granted a non-exclusive, revocable, limited license to use such content as specifically made available for Participant’s use (“TWE Content”) for the sole purpose of the development, submission and use of Participant’s User Content. For purposes of certainty, Participant may not make any commercial, or any other, use of TWE Content. Participant shall have no right to assign or sublicense such licensed rights except insofar as necessary to permit third party websites and online services to post or distribute Restricted Content (defined below) to the extent permitted in Section 8 below. Such license shall automatically terminate, without the need of notice, upon any other use or any breach of these Terms or any other restrictions posted by TWE in connection with the Application. The license under this Section 7 may be further revoked at any time by TWE without the need to give any reason.
9. Representations and Warranties; Indemnity: Participant hereby represents and warrants that his or her User Content (excepting any TWE Content furnished to Participant by TWE with permission to be used in connection with the creation of User Content hereunder): (i) is wholly original with Participant or that Participant maintains all the necessary rights, licenses, clearances, permissions and consents needed from third parties in order to submit the User Content to TWE for TWE’s use for advertising and other commercial purposes; (ii) is not a copy or imitation of any other material; (iii) will not infringe or violate any right whatsoever, including, without limitation, any personal rights (e.g., defamation, privacy, false light, moral right, etc.) or any property rights (e.g., copyright, trademark, right to ideas, etc.) of any person or entity; and (iv) is not the subject of any threatened or pending litigation, claim or dispute that might give rise to litigation, which adversely affects or in any way prejudices, impairs or diminishes the rights granted hereunder or the value thereof. Participant further represents and warrants that he or she has the right to execute and fully perform these Terms and that Participant is of the age of majority in their state of residence. Participant will defend, indemnify and hold TWE, any social media platform where your submitted your User Content, their parent companies, and each of their respective successors, assigns and licensees, harmless from and against: (a) any claims, costs, injuries, losses and damages related to any unauthorized use of the TWE Content, Content Tools or any breach by Participant of these Terms; and (b) any third party claims, to the extent relating to any breach of any representation, warranty or covenant made by Participant in these Terms. Participant further represents and warrants that there are no performing rights societies or collective bargaining organizations, unions or guilds that has jurisdiction over any User Content.
10. Disclaimer of Warranty; Limitation of Liability: We provide the TWE Content for you to interact with us and with our other TWE appreciators, and to provide you with information about us and our products. While we strive to provide TWE Content that is accurate and complete, under no circumstances will we be liable for any loss or damage caused by your reliance on information in any TWE Content (or User Content). It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other TWE Content made available by us.
ALL CONTENT AND SERVICES, WHETHER PROVIDED BY TWE, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE IN CONNECTION WITH THE CAMPAIGN AND/OR APPLICATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, TWE DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING, BUT NOT LIMITED TO, MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF USER CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE APPLICATION, OR THE SERVER(S) THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL TWE, ITS LICENSORS, VENDORS, DEALERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THESE TERMS, THE APPLICATION OR THE CAMPAIGN, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY) NOT TO EXCEED TEN DOLLARS ($10.00), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE.
11. Governing Law, Jurisdiction and No Class Actions: We hope we never get into any disputes with you in connection with these Terms, but just in case, here are some things that would apply:
A. GOVERNING LAW/JURISDICTION. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THIS CAMPAIGN MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
B. Arbitration. You and we agree that, to the fullest extent permitted by applicable law, any controversy or claim in connection with or related to these Terms not otherwise resolved between you and TWE will be settled solely by binding arbitration by a single neutral arbitrator who is a lawyer or retired judge in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), administered in accordance with the AAA’s Supplementary Procedures for Consumer-Related Disputes; provided, however, that any issues relating to TWE’s intellectual property rights, including any such rights TWE claims that may be in dispute, shall only be subject to arbitration if TWE’s General Counsel agrees in writing to have such subject to arbitration. If a party submits the dispute to formal arbitration hereunder and the AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), using its streamlined Arbitration Rules and Procedures, or any other mutually agreeable arbitration administration service. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in these Terms and can award the prevailing party(ies) damages and other relief. You and we each further agree that any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration or other proceedings with any claim or controversy of any other party; provided, however, that if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court. If an in-person hearing is required, the arbitration hearing will be conducted in Napa County, California (unless prohibited by applicable law) and judgment on the arbitration award may be entered into any court having jurisdiction of it. The parties will pay the administrative and arbitrator’s fees in accordance with the applicable arbitration rules; provided, however, if applicable law requires TWE to pay a greater portion of such fees in order for the arbitration provision to be enforceable, TWE shall have the discretion to elect to pay such fees and proceed to arbitration. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org and from JAMS at (949) 224-1810 or https://www.jamsadr.com. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim, and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties. Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.
C. No Class Actions. To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to these Terms will be resolved individually, without resort to any form of class action.
12. Right to Investigate/Cooperation with Law Enforcement: TWE reserves the right, without any limitation, to: (i) investigate any suspected breaches of the Application security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms, (iii) investigate any information obtained by TWE in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms, and (vi) discontinue the Application, in whole or in part, or suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to TWE under these Terms. Upon suspension or termination of your access to the Application, or upon notice from TWE, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of the Application. The provisions of these Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to TWE in these Terms.
13. Consent to Terms; Updated Terms: You agree to comply with: (i) all applicable laws, rules and regulations in connection with your submission of User Content; (ii) all applicable Facebook, Twitter, Instagram, Snapchat, YouTube, Foursquare, Apple, Google, and/or such other social network, geo-location service or mobile environment terms, rules, policies and guidelines; and (iii) these Terms. You also consent to TWE’s Data Protection Policy . Your submission of User Content will be deemed express acceptance and compliance with these Terms and with TWE’s Data Protection Policy . TWE reserves the right to modify these Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Application so that they are accessible via a link on the Application, and that your use of the Application after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. The Updated Terms will be effective as of the time that TWE posts them on the home page of the Application, or such later date as may be specified in them.
14. Severability; Interpretation: If any provision of these Terms is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.