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The WineCommune (WineCommune.com) User Agreement

THE FOLLOWING DESCRIBES THE TERMS ON WHICH WINECOMMUNE.COM OFFERS YOU ACCESS TO OUR SERVICES. USE OF THIS WEBSITE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.

Welcome to WineCommune’s User Agreement. This Agreement describes the terms and conditions applicable to your use of our services at http://www.winecommune.com. By using this website, you accept the terms and conditions of this Agreement. If you do not accept these terms and conditions please do not use our services. If you have any questions, please contact contact@winecommune.com.

You must read, agree with and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a member of WineCommune. We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages and websites referred to in this document, as they may contain further terms and conditions that apply to you as a WineCommune user. Please note: underlined words and phrases are links to these pages and websites. By accepting this User Agreement, you also agree that your use of other WineCommune websites will be governed by the terms and conditions posted on those websites.

We may amend this Agreement at any time by posting the amended terms on our site. The amended terms shall automatically be effective 30 days after they are initially posted on our site. This Agreement may not be otherwise amended except in a writing signed by both parties. This agreement was revised on November 26th, 2002. This agreement is effective November 26th, 2002 for new registering users, and is otherwise effective on December 26th, 2002 for all users registered on or before November 26th, 2002.

Eligibility for Membership. Our services are available only to individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to minors. If you do not qualify, please do not use our services. WineCommune may refuse our services (such as, but not limited to listings, chat, buying, and bidding) to anyone at any time, in our sole discretion.   Individuals must be at least 21 years of age if you reside in the United States or of legal drinking age in their country of residence. Further, your WineCommune account (including feedback) and User Id may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement.

Fees. Joining WineCommune is free.  Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all applicable taxes and for all hardware, software, service and other costs you incur to bid, buy, procure a listing from us or access our servers. We may in our sole discretion add, delete or change some or all of our services at any time.

WineCommune is Only a Venue. Our site acts as the venue for sellers to conduct auctions and for bidders to bid on sellers’ auctions. We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot and do not control whether or not sellers will complete the sale of items they offer or buyers will complete the purchase of items they have bid on. In addition, note that there are risks of dealing with foreign nationals, underage persons or people acting under false pretense.

WineCommune is not an Auctioneer. Although we are commonly referred to as an online auction web site, it is important to realize that we are not a traditional "auctioneer." Instead, our site acts as a venue to allow anyone to offer, sell, and buy just about anything, at anytime, from anywhere, in a variety of pricing formats, including a fixed price format and an auction-style format commonly referred to as "online auctions" or "auctions." We are not involved in the actual transaction between buyers and sellers. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items. We cannot ensure that a buyer or seller will actually complete a transaction.

Identity Verification. Because user authentication on the Internet is difficult, WineCommune cannot and does not confirm that each user is who they claim to be. Therefore, because you must be careful in dealing with other users to avoid fraud, we have established a user-initiated feedback system to help you evaluate who you are dealing with. We also encourage you to communicate directly with a trading partner to help you evaluate with whom you are dealing. Please practice safe trading. If you have any concerns about your trading partner, please consider the use of a third party escrow service or services that provide additional user verification.

Release. Because we do not and cannot be involved in user-to-user dealings, in the event that you have a dispute with one or more users, you release WineCommune (and our agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

Information Control. For legal reasons, we cannot nor do we try to control the information provided by other users which is made available through our system. By its very nature, other people’s information may be offensive, harmful or inaccurate, and in some cases will be mislabeled or deceptively labeled. We expect that you will use caution -- and common sense -- when using our site.

Bidding and Buying. By bidding on an item you agree to be bound by the conditions of sale included in the item's description so long as those conditions of sale are not in violation of this Agreement or unlawful. As a bidder, if you have the highest bid at the end of the auction, at or above the minimum bid price (or in the case of reserve auctions, at or above the reserve price), and your bid is accepted by the seller, you are obligated to complete the transaction. Further, you are obligated to complete the transaction with the seller if you purchase an item through one of our fixed price formats. Bids are not retractable except in exceptional circumstances such as the seller materially changing the description of the item after your bid or clear typographical errors, or when you can not authenticate the identity of the seller. You may not bid in a way that pulls other bidders to their maximum bid, retract the high bid, and then rebid at a small increment above the legitimate high bidder (bid manipulation).
 
Listing and Selling. You must be legally able to sell the item(s) you list for sale on our site. You must describe your item and all terms of sale on the listing page of our site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed items must be listed in an appropriate category. All Dutch auction items must be identical. Listings are text descriptions, graphics and pictures on WineCommune's web site supplied by you that either; (a) textually describe the item you are listing for auction or sale, or (b) link to the text, graphics and picture(s) describing the item you are listing for auction. You may post on WineCommune's site either or both of these listing types, provided that you place such listings in an appropriate category.

Binding Bids. If you receive one or more bids at or above your stated minimum price (or in the case of reserve auctions, at or above the reserve price), then you are obligated to complete the transaction with the highest bidder, unless there is an exceptional circumstance, such as; (x) the buyer fails to meet the terms of your listing (such as payment method), or (y) you cannot authenticate the identity of the buyer. You may not email bidders in a currently open auction being run by a different seller, offering similar or the same items at any price level (bid siphoning), nor may you use an alias to place bids on your auction for any reason.

Fraud. Without limiting any other remedies, WineCommune may suspend or terminate your account if you are found (by conviction, settlement, insurance or escrow investigation, or otherwise) to have engaged in fraudulent activity in connection with our site.

Manipulation. Neither you, bidders nor sellers may manipulate the price of any item nor may you interfere with other user's listings or transactions.

Your Information. Your information includes any information you provide to us or other users during the registration, bidding or listing process, in any public message area (including the Café or the feedback area) or through any email feature (defined herein as "Your Information"). With respect to Your Information:

6.1 Responsibility. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. However, we may take any action with respect to such information we deem necessary or appropriate in our sole discretion if we believe it may create liability for us or may cause us to lose (in whole or in part) the services of our ISPs or other suppliers.

6.2 Restricted Activities. Your Information (or any items listed) and your activities on the site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene or contain child pornography or, if otherwise adult in nature or harmful to minors, shall be posted only in the Mature Audiences section and shall be distributed only to people legally permitted to receive such content; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; (i) attempt to circumvent the WineCommune system by conducting transactions off the WineCommune system; (j)use WineCommune's system or information to send unsolicited emails or other messages except as specifically related to a particular transaction; (k) abuse or threaten other WineCommune users or employees; and (k) link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Agreement; (bb) are identical to other items you have up for auction but are priced lower than your item's reserve or minimum bid amount; (cc) are concurrently listed for sale on a web site other than WineCommune's (this does not prevent linking to or advertising an WineCommune item from another web site); or (dd) you do not have a right to link to or include. Furthermore, you may not list any item on the site (or consummate any transaction that was initiated using our service) that, by paying to us the listing fee or the final value fee, could cause us to violate any applicable law, statute, ordinance or regulation, or that violates our current Prohibited, Questionable and Infringing Items.

6.3 License. Solely to enable The Wine Commune to use Your Information you supply us with, so that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in Your Information, in any media now known or not currently known, with respect to Your Information. WineCommune will only use Your Information in accordance with our Privacy Policy.

No Price Manipulation. Sellers may not manipulate the price of their item, either by using a shill (a secondary account or third party) or by bidding themselves.

System Integrity. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the WineCommune site or any auction being conducted on our site. You may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure. You may not disclose or share your password to any third parties or use your password for any unauthorized purpose.

Feedback. You may not take any actions which may undermine the integrity of the feedback system, such as: leaving positive feedback for yourself using secondary User IDs or third parties; leaving negative feedback for other users using secondary accounts or third parties (feedback bombing); or leaving negative feedback if a user fails to perform some action that is outside the scope of the auction (feedback extortion). If you earn a net feedback rating of -4 (minus four), your membership will automatically suspend, and you will be unable to list or bid.

Export. Because feedback ratings are not designed for any purpose other than for facilitating trading between WineCommune users, we may suspend or terminate your account if you choose to market or promote your WineCommune feedback rating in any venue other than WineCommune.

Breach. Without limiting other remedies, we may immediately remove your item listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your membership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.

Privacy. Our current privacy policies are incorporated herein by reference. We view protection of users' privacy as a very important community principle. We understand clearly that you and your information is one of our most important assets. We store and process your information on computers located in the United States that are protected by physical as well as technological security devices. We use third parties to verify and certify our privacy principles.

No Warranty. WE AND OUR SUPPLIERS PROVIDE THE WineCommune WEB SITE AND OUR SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights which vary from state to state.

Limit of Liability. IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. 
OUR LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some states do not allow the limitation of liability, so the foregoing limitation may not apply to you.

Indemnity. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.

General Compliance with Laws. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase and sale of items.

No Agency. You and WineCommune are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

Notices. Except as explicitly stated otherwise, any notices shall be given by email to contact@winecommune.com (in the case of WineCommune) or to the email address you provide to WineCommune during the registration process (in your case), or such other address as the party shall specify. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to WineCommune during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.

Arbitration. Any controversy or claim arising out of or relating to this Agreement or our services, excluding legal action taken by WineCommune to collect our fees and/or recover damages for, or obtain an injunction relating to, the WineCommune site operations, intellectual property, and our services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall be conducted in Alameda County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or WineCommune may seek any interim or preliminary relief from a court of competent jurisdiction in Alameda County, California necessary to protect the rights or property of you or WineCommune pending the completion of arbitration.

General. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of our site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that this Agreement and all incorporated agreements may be automatically assigned by WineCommune, in our sole discretion, to a third party in the event of a merger or acquisition. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.

Disclosures. The services hereunder are offered by WineCommune LLC, located at 1315 Martin Luther King Jr Way Suite 8, Berkeley, CA 94709. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. Fees for our services are described at http://www.winecommune.com/help/feesFaq.cfm

Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. If you are interested in learning more about these protections, information is available at http://www.worldvillage.com/wv/school/html/control.htm or other analogous sites providing information on such protections.

The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

Questions?  email contact@winecommune.com.

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