Last updated November 10, 2021

These Terms and Conditions (the “Agreement“) govern all access to and use of this software service and related system provided by Pix.wine Inc. (“Pix”) for, among other things, listing wines, keyword bidding and disseminating wine-related information and, upon acceptance by you, constitutes a binding agreement between Pix, on the one hand, and you and, if applicable, the entity on whose behalf you are accessing or using Pix’s services (collectively “you” or the “Client”), on the other hand. Pix’s software service and system is made up of software components, data, information, interactive computer services and all applicable documentation, related interfaces, functionality, web-services, supplements, add-on components, corrections, bug fixes, modifications, enhancements, updates, new versions or releases that Pix subsequently may make available (collectively, the “System”). 

Please read this Agreement carefully before accessing or using Pix’s services or System or any portion thereof. By clicking on “I agree” or by accessing or using Pix’s services or System or any portion thereof, you acknowledge and confirm that: (a) you are at least 18 years old and may legally be bound by all of the terms and conditions of this Agreement; (b) you have full authority from the Client that you represent to bind the Client to all of the terms and conditions of this Agreement; (c) you have read, and you understand and agree to, all of the terms and conditions of this Agreement; and (d) you acknowledge that this Agreement is the legal equivalent of a signed, written contract between Pix and Client. If you are not willing to be bound by all of the terms and conditions of this Agreement, including without limitation the preceding acknowledgement and agreement, then you must not select the ‘I agree’ button associated with this Agreement and you must not access or use Pix’s services, the System or any portion thereof;

1. Services and Support

1.1  For purposes of this Agreement, “Pix Services” means a service whereby (i) Client provides Pix with current information regarding its products, such as its wine inventory / availability, ratings, reviews and editorial content, wine prices (including specials) and estimated delivery times (collectively, “Product Information”), (ii) end users / wine consumers (each a “Wine Purchaser”) use Pix’s search engine to search for wine to purchase, and (iii) Pix provides to the Wine Purchaser the search results together with links to the websites of the wineries or retailers that comprise the results of the search, which might be Client and its website. Client understands that by providing Pix more complete Product Information, Client’s listing of such product will be more likely to appear when a Wine Purchaser searches using a related word or phrase, and that search results generated without the use of purchased keywords is free of charge to Client. Client may also, however, purchase keywords through Pix’s keyword auction system, in which case only those links that are generated as a result of wine search keywords purchased by Client and subsequently clicked by Wine Purchasers will be fee-bearing. Client acknowledges and agrees that link results generated through purchased keywords will be clearly marked as “Sponsored” or something similar. Client acknowledges that it is Pix’s goal to provide results that are as relevant and as accurate as possible in response to each Wine Purchaser’s search on the Pix system and, as such, all information that Client believes is important to reach this goal should be provided by Client to Pix. For more information regarding Product Information and how to provide it to the Pix system, see the Pix website for guidance.

1.2  Client’s access to the Pix Services is through the Internet and solely for Client’s internal use. The software underlying the Pix Services will be hosted on a server under control or direction of Pix. The Pix Services are subject to modification from time to time at Pix’s sole discretion, for any purpose deemed appropriate by Pix. Pix will use reasonable efforts to give Client prior written notice of any material modification.

1.3  Pix will use commercially reasonable efforts to make the Pix Services available 99.5% of the time, provided however that Client acknowledges and agrees that unavailability of the Pix Services shall not be counted against the 99.5% uptime objective for (i) scheduled or emergency maintenance, (ii) Force Majeure Events or (iii) Pix’s suspension of Client’s access to the Pix Services in the event Client is in breach of this Agreement, including without limitation failure to pay any amounts due to Pix.

1.4   Subject to the terms and conditions hereof, Pix will provide reasonable support to Client for the Pix Services.

1.5   Client will not, and will not request or authorize any third party to:  reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the System or any software, documentation or data related to the Pix Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate or create derivative works based on the System or Pix Services; use the Pix Services or System for timesharing or service bureau purposes; use the Pix Services or System other than in accordance with this Agreement; use the Pix Services or System other than in full compliance with all applicable national, federal, state, provincial and local statutes, laws, ordinances, rules and regulations, including but not limited to those regarding the minimum purchase age for alcohol, the minimum age to receive delivery of alcohol, the manufacture, marketing, distribution and/or sale of alcohol, privacy, data security, intellectual property, consumer and child protection, obscenity and defamation (collectively, “Applicable Laws”); except as expressly permitted by the functionalities of the Pix Services, run or use any processes that run or are activated while Client is not logged on to the Pix Services or that “crawl,” “scrape,” or “spider” the Pix Services; or use the Pix Services or System in any manner that (i) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (ii) impersonates any person or entity, including without limitation any employee or representative of Pix, or (iii) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).

2. Responsibilities and Certain Restrictions

2.1  Client shall use commercially reasonable efforts to:  (i) provide accurate, complete and current Product Information to Pix; and (ii) keep the wine inventory / availability, ratings, reviews and editorial content, wine prices, offers and estimated delivery time information up to date. Client acknowledges and agrees that Pix may, at its sole discretion, remove any Product Information, in whole or in part, for any reason that Pix deems desirable, including without limitation to ensure that the Pix Services are accurate, complete and appropriate.  

2.2  Client will reasonably cooperate with Pix in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as Pix may reasonably request to assist in its provision of the Pix Services. Client will also cooperate with Pix in establishing a password or other procedures for verifying that only designated employees of Client have access to any administrative functions of the Pix Services, if applicable. Each Client end-user of the Pix Services must (i) be a current employee, consultant, contractor or agent of Client using the Pix Services only on Client’s behalf, and (ii) be bound by obligations that are no less protective of the Pix Services than the terms set forth in this Agreement. Client will be directly responsible to Pix with respect to all actions and/or inactions of its end-users of the Pix Services.

2.3  Client shall be solely responsible for all aspects of marketing, selling and distributing wine and/or other alcoholic beverages from the website of Client to which Pix’s website links, including without limitation:  compliance with all Applicable Laws related to such marketing, selling and distributing; compliance with all Applicable Laws regarding alcohol minimum purchase age and minimum age to receive delivery of alcohol; compliance with all Applicable Laws related to Client’s customers’ privacy and data security rights; collection of all amounts paid by Client’s customers; shipment of all goods to Client’s customers; establishment of policies (and conformance with the same) regarding product returns, refunds, exchanges, damaged shipments and the like.

2.4  At Client’s discretion and without obligation to do so, Client may provide suggestions, ideas, enhancement requests, feedback, recommendations and/or other information to Pix with respect to the Pix Services and Client’s use thereof (collectively, “Feedback”) during the term. Such Feedback may include, without limitation, (i) errors or difficulties discovered in the Pix Services and the characteristic conditions and symptoms of the errors and difficulties, (ii) suggestions for enhancement and/or improvement of the Pix Services, and/or (iii) testimonials regarding the Pix Services. Unless specifically agreed in writing by both parties hereto (and notwithstanding Section 3 below), Feedback provided by Client shall be Pix’s Confidential Information.

3. Confidential Information

3.1. “Confidential Information” means all non-public information related to Pix’s technology and/or business. Client (the “Receiving Party”) understands that Pix (the “Disclosing Party”) may disclose or otherwise make available Confidential Information. The Receiving Party, agrees: (i) except as expressly provided under this Agreement, not to divulge to any third party any Confidential Information of the Disclosing Party; (ii) to give access to the Disclosing Party’s Confidential Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the Disclosing Party’s Confidential Information as this Agreement); and (iii) to take the same security precautions to protect against disclosure or unauthorized use of the Disclosing Party’s Confidential Information that the Receiving Party takes with its own proprietary information, but in no event less than reasonable precautions to protect such Confidential Information. The foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

3.2  With respect to Pix Services, prior to providing any Product Information to Pix, Client shall make all disclosures, and obtain all licenses and consents, necessary to comply with all Applicable Laws related to Client’s providing the Product Information to Pix and Pix’s using such Product Information in accordance with this Agreement. Client acknowledges and agrees that Pix may publish any and all Product Information and that Pix neither requires nor desires any Confidential Information of Client or its suppliers, customers or end users within such Product Information.

3.3  Further, Client acknowledges and agrees that Pix may collect data related to Client’s use of the Pix Services, which by way of illustration but not limitation includes the aggregate response rate and other aggregate measures of the Pix Services’ performance and Client’s use of various aspects of the Pix Services and that no such information shall be deemed to be information owned or controlled by Client.

4. Intellectual Property Rights

4.1  Pix alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Pix Services and the System. Client acknowledges and agrees that this Agreement does not convey to Client any rights of ownership in or related to the Pix Services or System or any intellectual property rights therein. Client will not copy, reproduce, modify, distribute or use the Pix Services or System except as expressly permitted under this Agreement. Client acknowledges that access to, and use of, the Pix Services is limited to the scope of the express provisions set forth in this Agreement and that there are no implied licenses; all rights not expressly granted under this Agreement are reserved by Pix. Further, Client hereby assigns to Pix all right, title and interest, including without limitation all intellectual property rights worldwide, in and to any and all Feedback.

4.2  With respect to Pix Services, Client and its licensors shall (and Client hereby represents and warrants that they do) have and retain all right, title and interest in and to all Product Information, including without limitation all the intellectual property rights embodied therein. If Pix receives any notice or claim that any Product Information, or activities hereunder with respect to any Product Information, might infringe or violate rights of a third party or any Applicable Law (a “Claim”), Pix may (but is not required to) suspend activity hereunder with respect to that Product Information. Client, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Pix a perpetual, irrevocable, royalty-free, fully paid-up, worldwide, non-exclusive, transferable, sublicensable license to view, copy, reformat, distribute, display and analyze the Product Information solely in connection with Pix’s System.

4.3  Client agrees to serve as a customer reference for Pix, and participate in press announcements, case studies, trade shows, and/or other forms reasonably requested by Pix. Unless and until Client notifies Pix in writing to the contrary, Pix is permitted to disclose that Client is one of its customers to any third-party at its sole discretion, and to place Client’s name and logo on its website and marketing materials for this purpose.

5. Payment of Fees

5.1 Much of Client’s use of Pix Services is free of charge and, with the exception of advertising options and search results generated through keywords purchased by Client, Client’s product links will be provided free of charge in the search results of Wine Purchasers. Client may purchase advertising or, through Pix’s keyword auction system, purchase keywords and only those links that are generated as a result of wine search keywords purchased by Client and subsequently clicked by Wine Purchasers will be fee-bearing. Client acknowledges and agrees that those link results will be clearly marked as Sponsored or something similar.

6. Termination

6.1  The term of this Agreement shall commence on the date on which you click ‘I accept’ and continue until terminated in accordance with this Section 6.

6.2  Either party may terminate this Agreement for any or not reason upon providing at least 30 days’ advance written notice.

6.3  Upon termination of this Agreement for any or no reason:

(i)     Client’s right to access and use the Pix Services and the System, and any licenses granted by Pix to Client, shall immediately terminate;

(ii)   Client shall promptly pay any amounts incurred, if applicable, on or prior to the effective date of termination; and

(iii)  the following Sections will survive any termination of this Agreement: Section 1.5; Section 2.3; Section 3; Section 4; Section 6.3; Section 7.4; and Sections 8 through 11; and any accrued rights to payment.

7. Representations And Warranties

7.1   Mutual. Each party represents and warrants to the other party that (i) it has the legal right and power to enter into this Agreement, (ii) the performance of its obligations hereunder will not violate or conflict with any agreements, contracts or other arrangements to which it is a party, and (iii) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained.

7.2 By Pix. Pix represents and warrants to Client that, to Pix’s knowledge, no portion of the Pix Services infringes any third-party intellectual property right.

7.3   By Client.  Client represents, warrants and covenants to Pix that Client does and at all times during the term of this Agreement shall have all rights necessary to provide all Product Information to Pix and allow Pix to use and publish all Product Information without breach or violation of any third party’s rights, including without limitation any intellectual property, confidentiality, privacy, data security or proprietary right, or violation of any Applicable Law. 

7.4   Disclaimer. Except as expressly provided herein, the Pix Services and anything else provided by Pix in connection with this Agreement are provided on an “as is” basis. Client assumes all responsibilities for selection of the Pix Services to achieve Client’s intended results, and for the use of, and results obtained from, the Pix Services. Pix hereby disclaims any and all additional warranties, whether express, implied, statutory or otherwise. Pix specifically disclaims any implied warranties of merchantability, non-infringement, quality and fitness for a particular purpose. Pix does not warrant that the Pix Services and/or anything else provided in connection with this Agreement will be error-free or that the Pix Services will work without interruption. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

8. Limitations Of Liability; Indemnification

8.1  Limitations of Liability.

(i)    In no event will Pix, its licensors, suppliers or contractors be liable, whether based in contract, tort (including negligence), strict liability or otherwise, even if Pix or its licensor, supplier or contractor has been advised of the possibility of damages, for: (A) any indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the Pix Services, the System or anything provided in connection with this Agreement; or (B) any delay or inability to use the Pix Services; or (C) loss of revenue or anticipated profits or lost business or lost sales or harm to reputation.

(ii)    With the exception of Pix’s obligations set forth in Section 8.2(ii) below, the total liability of Pix and its licensors, suppliers and contractors, whether based in contract, tort (including negligence or strict liability) or otherwise, will not exceed, in the aggregate, the fees paid to Pix by Client hereunder. The foregoing limitations will apply notwithstanding any failure of essential purpose of any limited remedy.

8.2  Indemnification

(i)    By Client. Client hereby agrees to defend, indemnify and hold Pix harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in connection with any third party claim or action that alleges any (a) infringement, violation or misappropriation of any intellectual property or proprietary right(s), or violation of any privacy rights, related to any Product Information, including without limitation in connection with Pix’s use, publishing and/or analysis thereof through the Pix Services, and/or (b) violation of any  Applicable Law in connection with Client’s or its Wine Purchaser’s use of the Pix Services pursuant to this Agreement and/or (c) breach or violation of any provision of this Agreement. Pix shall promptly notify Client of any such claims or actions, shall give reasonable assistance and shall grant sole control over defense and settlement thereof to Client.

(ii)  By Pix. Pix hereby agrees to defend, indemnify and hold Client harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to third parties as a result of any claim or action that arises from the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party by the Pix Services (excluding in all events any claims and actions related to Product Information); provided that Pix is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement thereof. The foregoing obligations do not apply with respect to portions or components of the Pix Services (a) not created by or on behalf of Pix, (b) resulting in whole or in part from portions of the Pix Services or System that are modified by a party other than Pix or its contractor, (c) combined with other products, processes or materials where the alleged infringement arises out of such combination, (d) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (e) where Client’s use of the Pix Services violates applicable laws or substantiates a material breach of this Agreement.

9. U.S. Government Matters

Notwithstanding anything to the contrary, Client may not provide to any person or export or re-export or allow the export or re-export of the Pix Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Client acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Pix Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Pix are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

10. Force Majeure

10.1  Notwithstanding anything in this Agreement to the contrary, Pix will be excused from performance of Pix Services hereunder for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Client or third parties not managed by Pix or a Force Majeure Event, and such non-performance will not be a default hereunder or a ground for termination hereof. Client acknowledges that website operations are affected by numerous factors outside of Pix’s control.

10.2  “Force Majeure Event” means an act that is outside of Pix’s reasonable control, including without limitation an act of God, war (whether or not actually declared), armed conflict or the serious threat of the same, hostility, blockade, military embargo, sabotage, insurrection, rebellion, act of a public enemy, riot or other act of civil disturbance, governmental act, judicial action, explosion, act of terrorism or threat thereof (including cyberterrorism), network connectivity issues not managed by Pix, denial of service attacks, virus or hacking attacks for which there is no commercially reasonable known solution, natural disaster (including without limitation asteroid strikes or volcanic activity), violent storm (including without limitation hurricanes, tornados or blizzards), atmospheric disturbance (including without limitation geomagnetic storm, solar flare or sun outage with respect to electricity grids, transformers and satellite transmissions), fluctuations in electrical equipment outside of Pix’s equipment, destruction by lightning, fire, earthquake, tsunami, flood, plague, epidemic, pan-epidemic, quarantine, civil commotion, strike or lockout or labor dispute (excluding for the avoidance of doubt strikes of Pix’s staff), satellite malfunction, prolonged internet outage and/or communications line failure or power failure.

11. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Pix’s prior written consent. Pix may transfer and/or assign this Agreement to a successor in connection with a merger or sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws’ provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.