CellarPass Legal
Last Updated: March 9, 2022
CellarPass Terms of Use
In this Agreement, “CellarPass” or “company” means CellarPass, Inc., and “User” or “you” means you. This Agreement incorporates CellarPass’ standard policies, procedures and Terms of Use of the Services that are referenced by name or by links in this Agreement (“CellarPass Policies”). These CellarPass Terms of Use (the “Agreement”) apply to your consumer use of (1) the CellarPass website at http://www.CellarPass.com and all affiliated web sites owned and operated solely by CellarPass (the “CellarPass Site”), (2) the guest reservation services made available by CellarPass through the CellarPass Site, CellarPass Applications and any other online properties of CellarPass or third parties, as described in Part I below (“Guest Management Services”), (3) any CellarPass-branded application for your mobile or other device (each, an “CellarPass Application”), (4) the Gift-Card purchases and related services provided by CellarPass as described in Part II below and, (5) any other services or features made available by CellarPass, Inc. through the CellarPass Site or any CellarPass Application. Combined, the items in (1) through (5) are referred to as the “Services”.
By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand and agree to be bound by this Agreement and (2) you and/or the person on which behalf you are making reservations or purchasing experiences for are of legal age and not prohibited by law from accessing site functionality or content related to alcohol, purchasing alcohol or an experience that includes alcohol or using the Services (including, if applicable, giving, using or redeeming any Gift Card) in the applicable jurisdiction. You further agree and understand that for experiences involving alcohol you must present valid government issued identification, which shows you are of legal drinking age in the applicable jurisdiction, before you are served alcohol. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.
CellarPass may update or revise this Agreement (including any CellarPass Polices) from time-to-time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept the modified Agreement, but accepting the Agreement is required for you to continue using the Services. You may have to click to agree to the modified Agreement to show your acceptance. If you do not agree to the modified Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account. Except as otherwise expressly stated by CellarPass, any use of the Services (e.g., to make a guest reservation or to purchase a Gift Card) is subject to the version of the Agreement in effect at the time of use.
Part I - Business Account User Agreement
This USER Service Agreement (the "Agreement") and the policies referred to herein contain the complete terms and conditions that apply to your use of the reservation and ticketing services being offered with respect to guest management technology (the "Services") at web sites and apps owned and operated solely by CellarPass (collectively, the "CellarPass Site"). As used in this Agreement, "CellarPass" refers to CellarPass, Inc., and "USER" or "you" refers to you.
USE OF THE SERVICES AND THE CELLARPASS SITE CONSTITUTES KNOWING ACCEPTANCE AND ACKNOWLEDGEMENT OF THIS USER AGREEMENT AND CELLARPASS PRIVACY POLICY (COLLECTIVELY, THE "CELLARPASS POLICIES").
By providing credit card account information through or to the CellarPass Application, you represent, warrant, and covenant that: (1) you are legally authorized to provide such information to us; (2) you are legally authorized to perform payments from credit card account(s); and (3) such action does not violate the terms and conditions applicable to your use of such debit or credit card account(s) or applicable law. When you authorize a payment using a debit or credit card account via the CellarPass Application, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the supplied credit card account. Payments not received by the due date, including declined payments are subject to late fees and/or account suspension or termination if account is not brought current within (15) fifteen days.
To confirm that the payment card information you have provided directly through the CellarPass Application is valid, we may place a temporary $1.00 authorization hold on your credit card at the time you provide your payment card information through the CellarPass Application. After we verify that your payment card information is accurate, usually within a few days, the $1.00 hold will be removed. In no event will your payment card actually be charged for this $1.00 authorization. To the extent permitted by applicable law and subject to our privacy policy (https://www.cellarpass.com/business/privacy-policy), you acknowledge and agree that we may use certain third-party vendors and service providers at our sole discretion to process payments, manage credit card information and to detect and prevent fraud.
24. Account Lock Out
Access to your account will be automatically locked out if your payment fails after 45 days. Full payment is required to bring your account current before account can be unlocked.
25. Notify Us of Infringers
If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section.
26. Exclusive Agreement
By agreeing to use our platform, you are doing so exclusively based on the type of event you are posting; reservations, ticketed event, passport event and hybrid passport event. By posting an event on a competing platform (for example on EventBrite, TicketMaster, Resy, Rezdy, Checkfont, Fareharbor. (Explore)Tock, OpenTable, TicketSpice, etc), your CellarPass Account will be immediately locked out and you will be notified within 24 hours of our search bots us reporting the infraction. If you do not have any posted events on CellarPass, but you've posted events on any of the competing platforms, there will be no notice. Your CellarPass Account will be immediately cancelled and locked out.
In order for us to take action, you must do the following in your notice:
(a) Provide your physical or electronic signature;
(b) Identify the copyrighted work that you believe is being infringed;
(c) Identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) Provide us with a way to contact you, such as your address, telephone number, or email;
(e) Provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) Provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
Copyright Infringement Notification
CellarPass, Inc
50 California Street
Suite 1500
San Francisco, CA 9411
copyright@cellarpass.com
We cannot take action unless you give us all the required information as set forth above.
A VALID CREDIT CARD ON FILE IS REQUIRED TO UTILIZE CELLARPASS. User must provide valid credit card to maintain use of CellarPass services. If you need to update your credit card on file, log into the CellarPass back office and go to Member Configuration in the Settings area.
Part II – Consumer User Reservation-related Services
1. Reservations
CellarPass provides the Reservation Services to User for the purpose of assisting User in securing reservations at participating third party Properties (each a “Property”). In response to a User’s online request, CellarPass directly contacts the Property’s computerized database of reservations. The availability of reservations is determined at the time of User’s query. Once a reservation is made by User, CellarPass will provide confirmation of the reservation to User by email. By using the Reservation Services, User agrees to receive reservation confirmations by email after booking a reservation through the Reservation Services.
2. No Show Policy
CellarPass is committed to delivering top-quality services to its Users and Properties. To assist us in maintaining a consistently top-level of service with the participating Properties, Users are asked to cancel any reservations that they will be unable to honor in accordance to the Property’s Cancellation Policy. You may cancel your reservation online or call the guest directly. Failing to comply with canceling your reservation within the cancellation window set forth by Property, your credit card on file may be charged.
If you are unable to keep your reservation and you fail to cancel, CellarPass will send you an email letting you know that our records indicate that you were marked as a ‘no-show’, by the Property. By using the Reservation Services, User agrees to receive no-show confirmations by email after a report that your reservation was not honored, whether or not that was in fact the case. Your CellarPass account will be terminated if you no-show for four (4) reservations within the same twelve-month period. If you receive a ‘no-show’ confirmation email in error, please contact the guest directly for information on how to dispute it. User agrees that all final no-show determination will be made by CellarPass in its sole discretion.
3. Privacy Policy
CellarPass is committed to helping you safeguard your privacy online. Please review our privacy policy for details about how company collect and use information about use of the Services.
4. Usage Guidelines
User agrees to use the Reservation Services only to book reservations at participating Properties and then honor those reservations by arriving at the Property(ies) on time and paying any applicable tasting fees. User may be able to book multiple reservations through CellarPass’ Administrative Assistant and/or Concierge programs. Resale or attempted resale of reservations is prohibited, and is grounds for immediate cancellation of your reservations or termination of your access to the Services. CellarPass expressly reserves all its rights and remedies under applicable state and federal law. CellarPass reserves the right, in its sole discretion, to refuse service, terminate accounts, remove or edit content, or cancel reservations.
Part II – Terms for All Services
5. Your Account
You may (but are not required to) create an account in order to use Reservation Services. You may (but are not required to) create an account to access Services related to Gift Cards. When registering for an account with CellarPass (“Account”), you must provide true, accurate, current and complete data about yourself on the CellarPass registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify CellarPass of any unauthorized use of your Account or any other breach of security related to your use of the Services.
6. Communications
In addition to the terms outlined in our Privacy Policy, CellarPass Application may use GPS locator capabilities to identify your current location. CellarPass and/or the Property(ies) you book with or purchase tickets from through the use of the services may send you electronic messages to provide you information regarding the Services or as otherwise described in our privacy policy. You hereby expressly consent to receiving such electronic messages. You may at any time opt out of receiving marketing communications by using the provided Opt Out tools included in the message. You may not Opt Out of receiving Transactional communications. Transactional communications in relation to reservations or ticket purchases include but are not limited to reservation and/or ticket purchase confirmation, reminder notifications, cancellation confirmation, etc… The communication standards for the Services include, but are not limited to: email,SMS, GPS, and web-based browser technology. In order to use and receive electronic messages, you must maintain an active account with a carrier of electronic communications through email service providers, mobile service providers, etc… Due to the nature of prepaid cellular phone contracts, CellarPass does not guarantee or provide support for issues related to prepaid devices.
7. Technical Requirements
Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier charges resulting from your use of the Services, including from any notifications provided by the Services. CellarPass does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. You may be required to have JavaScript (or similar technologies) enabled to use the CellarPass Site, and some features and portions of the CellarPass Site (including but not limited to making, modifying or canceling reservations) may not be accessible with JavaScript disabled.
8. Modifications to Services
CellarPass reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including by removing, adding, or modifying portions of the CellarPass Site, CellarPass Applications, Properties and/or Merchants. CellarPass shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
9. Intellectual Property Rights and Grant of Rights to User
The features, information and materials provided and depicted through the Services are protected by copyright, trademark, patent and other intellectual property laws. All text, graphical content, video, data or other content made available through the Services (“CellarPass Content”) is provided to User by CellarPass or its partners or licensors. The CellarPass Content may be modified from time to time by CellarPass in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the CellarPass Content by User shall constitute a material breach of this Agreement. CellarPass and its partners or licensors retain all rights in the Services and CellarPass Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets or other intellectual property rights. No license, right or interest in any trademarks of CellarPass or any third party is granted under this Agreement.
10. Application License
Subject to the terms and conditions of this Agreement, CellarPass grants User a non-exclusive, non-transferable, revocable license to use the CellarPass Applications, in object code form only, on User’s compatible mobile devices, solely to support User’s permitted use of the Services.
11. Use Restrictions
The Services and CellarPass Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. You agree not to (and not to allow any third party to): (a) use any robot, spider, scraper or other automatic or manual device, process or means to access the Services or copy any CellarPass Content except as expressly authorized by CellarPass; (b) take any action that imposes or may impose (in CellarPass’ sole discretion) an unreasonable or disproportionately large load on the Services or CellarPass’ infrastructure; (c) utilize any device, software or routine that will interfere or attempt to interfere with the functionality of the Services; (d) rent, lease, copy, provide access to or sublicense any portion of the Services or CellarPass Content to a third party; (e) use any portion of the Services or CellarPass Content to provide, or incorporate any portion of the Services into, any product or service provided to a third party; (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by Applicable Law (and then only upon advance notice to CellarPass); (g) modify any Services or CellarPass Content or create any derivative product from any of the foregoing; (h) remove or obscure any proprietary or other notices contained in the Services; (i) use the Services for any illegal purpose or (j) publicly disseminate information regarding the performance of Services or access or use the Services for competitive analysis or benchmarking purposes.
12. International Users
You may not use, export or re-export any of the CellarPass Applications or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of Applicable Law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Government End Users
The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any CellarPass Application with only those rights set forth therein.
14. Termination
CellarPass may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, CellarPass may suspend your access to the Services if company believe you to be in violation of any part of this Agreement (including any CellarPass Policies) or (with respect to Gift Card purchasers) if company receive excessive charge backs on the credit card associated with your Account. After any suspension or termination, you may or may not be granted permission to re-establish an Account, and you may lose access to and be unable to use any accumulated Reward Points as described in the CellarPass Concierge Rewards Terms and Conditions. You agree that CellarPass shall not be liable to you for any termination of this Agreement or for any effects of this termination. You are always free to discontinue your participation and use of the Services at any time. You understand that any termination of your Account may involve deletion of any content you stored on your Account for which CellarPass will have no liability whatsoever.
15. Communications, Reviews, Comments and Other Content
The Services may permit you to submit reviews, comments, and ratings; send e-mails and other communications; and submit suggestions, ideas, comments, questions, or other information for publication and distribution to Properties and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising or health code or labor law violations. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. CellarPass reserves the right (but has no obligation) to monitor, remove or edit User Content in CellarPass’ sole discretion, including if the User Content violates this Agreement (including any CellarPass Policies), but you acknowledge that CellarPass may not regularly review submitted User Content. If you do submit User Content, and unless company indicate otherwise, you grant CellarPass a nonexclusive, perpetual, royalty-free, irrevocable, and fully sub licensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display and otherwise exploit such content throughout the world in any media. CellarPass takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
16. Your Representations and Indemnity
You represent and warrant that you own or otherwise control all of the rights to User Content; that all User Content is accurate; and that exploitation of such User Content by CellarPass and its other Users, partners and licensees will not violate this Agreement or cause injury to any person or entity or infringe any third party rights (including without limitation intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless and (at CellarPass’ request) defend CellarPass, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (“CellarPass Parties”) from and against all claims resulting from (a) your User Content, (b) your use of the Services or (c) any breach or alleged breach by you of this Agreement.
17. Liability Limitations
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SPECIFIED BELOW WITH RESPECT TO RESERVATIONS, IN NO EVENT SHALL THE CELLARPASS PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (I) THIS AGREEMENT, (II) ANY USE OF THE SERVICES, THE CELLARPASS CONTENT OR USER CONTENT, (III) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE RESERVATION SERVICES), OR (IV) YOUR VISIT TO ANY RESTAURANT OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT OR POLICIES OF ANY RESTAURANT OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, ALL USERS SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING USERS TO THE CELLARPASS SITE BY REFERRAL, LINK OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE CELLARPASS CONTENT. CELLARPASS IS NEITHER AN AGENT OF NOR IS CONNECTED WITH ANY RESTAURANT FOR WHICH A USER HAS MADE A RESERVATION.
WITH RESPECT TO GIFT CARD PURCHASERS, OR IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT PERMITTED BY LAW, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE PRICE YOU PAID FOR YOUR MOST RECENT GIFT CARD ORDER (IF APPLICABLE) OR FIFTY US DOLLARS ($50).
You and CellarPass understand and agree that the disclaimers, exclusions and limitations in this Section 20 and in Section 21: (a) are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that CellarPass would be unable to make available the Services to you except on these terms and (b) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
18. Disclaimer of Warranties
THE SERVICES, ALL CELLARPASS CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN ‘AS IS’ BASIS AND WITHOUT WARRANTY OF ANY KIND. CELLARPASS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR INDEMNITIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE OR TRADE USAGE. CELLARPASS DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CELLARPASS WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMAITON OR MATERIALS WITHOUT LOSS. CELLARPASS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CELLARPASS.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMTTED BY LAW. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
19. Links to Third Party Websites
The Services may contain hypertext links to websites operated by parties other than CellarPass. Such hypertext links are provided for User’s reference only and CellarPass does not control such websites and is not responsible for their content. CellarPass’ inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. CellarPass assumes no liability whatsoever for any such third party websites or any content, features, products or services made available through third party websites.
20. Release of Liability
Properties and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities and costs (“Claims”) suffered by you (or, if applicable, any Gift Card recipient) as a result of your interaction with or visit to any Property or Merchant or from any of their products and services. You hereby release the CellarPass Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “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.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the CellarPass Parties pertaining to the subject matter of this Section.
21. Copyright
If you believe that something on the Services violates your own copyright, notify our copyright agent in writing immediately. The contact information for our copyright agent is at the bottom of this section.
In order for us to take action, you must do the following in your notice:
(i) provide your physical or electronic signature;
(ii) identify the copyrighted work that you believe is being infringed;
(iii) identify the item that you think is infringing your work and include sufficient information about where the material is located so that company can find it;
(iv) provide us with a way to contact you, such as your address, telephone number, or e-mail;
(v) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used on the Services; and
(vi) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury), you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
Copyright Enforcement Agent
CellarPass, Inc.
50 California Street
#1500
San Francisco, CA 9411
Or via email by: copyright@CellarPass.com
Again, company cannot take action unless you give us all the required information.
22. Severability
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
23. Assignment
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by User, but may be freely transferred, assigned or delegated by CellarPass.
24. Waiver
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
25. Choice of Law
The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
26. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and CellarPass or CellarPass’ employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and CellarPass must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR CELLARPASS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, CellarPass will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) CellarPass also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) the arbitration shall be confidential, and neither you nor company may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by Applicable Law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either You or CellarPass may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither You nor CellarPass shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in San Francisco County, California.
For more information on AAA, its Procedures and Rules, and how you can file an arbitration claim, visit their website at http://www.adr.org.
Part III Ticketing Services
Merchant & Event Organizer Terms of Service
Welcome to CellarPass. CellarPass enables people to plan, promote, and sell tickets to their events.
1. ACCEPTANCE OF TERMS.
1.1 Overview.
The following terms and conditions (this “TOS”) govern all use by you as an Organizer (as defined below) of (a) the CellarPass, Inc. websites and domains (including all webpages, subdomains and subparts therein contained, the “Site”), (b) any and all services available on or through the Site or otherwise provided by CellarPass, Inc. (“CELLARPASS”) for your events, and (c) all Software (as defined below) (collectively, the “Services”). The Services are owned and operated by CellarPass. The Services are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Site by CELLARPASS. BY USING OR ACCESSING ANY PART OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES THAT MAY BE PUBLISHED FROM TIME TO TIME ON THE SITE BY CELLARPASS. IF YOU DO NOT AGREE TO ANY OF SUCH TERMS, CONDITIONS, RULES, POLICIES OR PROCEDURES, DO NOT USE OR ACCESS THE SERVICES. THIS TOS MAY ONLY BE MODIFIED (I) ON AN EVENT BY EVENT BASIS THROUGH A WRITTEN TICKETING SERVICES AGREEMENT OR WRITTEN ADDENDUM AGREEMENT TO THIS TOS, SIGNED BY YOU AND AN AUTHORIZED OFFICER OF CELLARPASS, OR (II) BY CELLARPASS AS PROVIDED IN SECTION 1.2 BELOW.
1.2 Modification.
CELLARPASS reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this TOS at any time. It is your responsibility to check this TOS periodically for changes. Your continued use of the Services following the posting of any changes to this TOS constitutes acceptance of those changes. If any change to this TOS is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Services.
1.3 Language.
We may translate this Terms of Service, our Privacy Policy or any other operating rules, policies and procedures that may be published from time to time on the Site into other languages for your convenience. The English language version of each of these documents is the version that governs your use of the Services and in the event of any conflict between the English language version and a translated version, the English language version will control.
2. DESCRIPTION OF CELLARPASS.
CELLARPASS provides a simple and quick means for registered users who are event organizers and planners (“Organizers” or “you”) to collect payments with respect to the sale of tickets/registrations, merchandise and services for, and the solicitation of donations with respect to, events registered on the Site, including Service Fees (as defined below) (“Ticket Fees “), from users who want to attend such events (“Buyers”). Organizers may visit the Site, fill out a questionnaire about their event, including pricing, location, inventory, etc., and collect Ticket Fees online directly from Buyers. Payments are all transacted through the CELLARPASS payment processing gateway (the “Gateway”). This TOS applies to you and your use of the Services as an Organizer.
3. YOUR USE OF THE SERVICES.
3.1 The Services.
CellarPass hereby grants you a non-exclusive, non-transferable, non-sub licensable right to access and use the Services solely for the purposes of creating an event page with respect to, and promoting, managing, tracking, and collecting Ticket Fees for, an event that you have registered on the Site, in each case (i) in compliance with this TOS, and (ii) to the extent permitted under all applicable laws and regulations (foreign and domestic). Notwithstanding the foregoing, you shall not, and shall not permit anyone else to, directly or indirectly: (i) modify, reproduce or otherwise create derivatives of any part of the Services or Site Content (as defined below); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); (iii) rent, lease, resell, distribute or use the Services for timesharing, service bureau, or commercial purposes (except for the limited commercial purpose of collecting Ticket Fees through the Site as an Organizer in accordance with this TOS); (iv) remove or alter any proprietary notices or labels on or in the Services or Site Content; or (v) engage in any activity that interferes with or disrupts the Services.
3.2 Software.
If you are allowed to download or use any Software in connection with the Services, CELLARPASS hereby grants you a personal, non-transferable, non-sub licensable, revocable, non-exclusive license to use the Software solely for your internal use in connection with the Services, and only in accordance with this TOS and the written instructions/directions (if any) provided by CELLARPASS in conjunction with the Software. For purposes of this TOS, “Software” shall mean any and all software that is available on or through the Site or otherwise provided by CELLARPASS, including without limitation CELLARPASSs mobile applications (such as At The Door™, Entry Manager and the CellarPass app). For clarity, the Software will be deemed a part of the “Services” hereunder.
The Software and the transmission of applicable data is subject to United States export controls. No Software may be downloaded or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. You shall also be responsible for using the Software in a manner that complies with all federal, state and local laws and the rules and regulations of all credit card companies.
The Software and related documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software or such documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this TOS.
4. PAYMENT METHODS.
4.1 Overview.
There are two types of payment processing Organizers use when using the Services: “Credit Card Processing” or “CCP”, which requires the use of the Gateway for the collection of Ticket Fees. Monetary payments will be made to the Organizer directly by CELLARPASS (via CCP) and Stripe (SD) in which all payments are collected by the Organizer directly via their own Stripe merchant account and such sales transactions. All questions regarding a ticket sale transaction, event cancellation or ticket purchase refund must be made to the Organizer directly. Unless otherwise stated, CellarPass does not own, operate, manage or is in anyway responsible for any ticketed events/experiences promoted through the Site.
(a) Payment Process
CELLARPASS will collect all Ticket Fees on behalf of the Organizer from Buyers and deduct all applicable Services Fees from the Ticket Fees collected by CELLARPASS, and then pass the remainder along to the Organizer five (5) business days after the event end date by default. CELLARPASS reserves the right to withhold funds (i) at any time as CELLARPASS determines to be necessary for the processing and settlement of all refunds, disputed charges, chargebacks, customer complaints, allegations of fraud, and other discrepancies and (ii) as otherwise permitted pursuant to this TOS. If you need access to ticket funds prior to the default payout date for things like venue expenses, catering deposits, etc... you have two options a) apply to receive payout advances see below or b) request to change the credit card processor to Stripe Payments.
Organizer agrees that all Ticket Fees for a given event are earned by Organizer only following conclusion of the applicable event and all Ticket Fees ultimately due will be net of all Service Fees, refunds, disputed charges, chargebacks and other deductions, whether due to customer complaints, allegations of fraud, discrepancies related to the applicable event or otherwise. No payments shall be made to an Organizer from CELLARPASS with respect to any event that is cancelled. If payments have already been made by CELLARPASS to an Organizer for a cancelled event, Organizer will immediately refund to CELLARPASS all such payments upon cancellation of such event. All sales, fees, charges, and funds are payable in U.S. Dollars.
(b) Payout Advances
Approval for a payout advance is issued on a case by case basis. If you would like to apply for ticketed event payout advances please email accounting@cellarpass.com to initiate the application process. In order for an application for event payout advance to be considered, it is required that 100% of all tickets (free or paid) for the event must be processed exclusively by CellarPass. Selling or otherwise issuing tickets through another system such as organizer's POS or sales system(s), other ticketing platforms, marketing sites, etc... is a breach of the payout advance agreement and will terminate the payout advances immediately. Only the account owner or authorized users with Admin role may apply for payout advances. As part of the approval process as well as periodic review to maintain payout advance approval, organizer may be required to provide business financial statements including, but not limited to Balance Sheets, Profit & Loss Reports, current and recent bank statements for the Organizer. Organizer agrees to provide requested documents within the time frame specified upon request. Additionally, Organizer agrees and understands there is a $75.00 administrative fee charged for each advance issued.
Payout Advance Cap
A payout cap is the total amount CellarPass will send across all events in your organization before our event(s) end. You will be able to receive up to $100,000.00 USD across all live events in your organization. This is a rolling cap that resets as you successfully complete events. Once an event ends and CellarPass sends your final payout, the amount paid out for the event no longer applies toward the cap.
Payout Reserve
CellarPass will hold 40% of your net payout (calculated on a per-payout, per-event basis) to cover potential attendee refunds, chargebacks, and cancellations. If for any reason the amount of your remaining payout for an event falls below 40%, no additional payouts will be made until you sell more tickets for that event or the event has successfully ended. The reserve amount held for your event(s) may be reduced at CellarPass' sole discretion based on several factors including refund and chargeback history. If a reserve reduction has been granted Organizer will be notified of the new reserve threshold. In no circumstances will payout reserve be less than 25%.
CellarPass sends your final payout on the 5th business day after your event has ended. Any amount held in reserve leading up to your event date will be included in your final payout.
ORGANIZER AGREES THAT ANY PAYMENT BY CELLARPASS OF TICKET FEES PRIOR TO THE FIFTH (5TH) BUSINESS DAY AFTER THE END DATE OF THE APPLICABLE EVENT IS MERELY AN ADVANCE OF AMOUNTS THAT MAY BECOME DUE TO ORGANIZER UNDER THIS TOS AND THAT CELLARPASS MAY DEMAND SUCH ADVANCES BACK (FROM TIME TO TIME IN ITS SOLE DISCRETION), AND ORGANIZER SHALL THEREUPON PROMPTLY (AND IN ANY CASE WITHIN 2 BUSINESS DAYS AFTER SUCH DEMAND) PAY BACK TO CELLARPASS SUCH ADVANCE OR ANY PORTION THEREOF DEMANDED BY CELLARPASS.
(c) Refunds
(i) It is the responsibility of the Organizer to communicate its refund policy to Buyers and to issue refunds to Buyers via the Site. An Organizer shall ensure that its refund policy is consistent with the terms of this TOS and the payment and refund mechanics of the Site. The Site permits an Organizer to issue refunds to Buyers, provided the refund is issued by Organizer prior to four (4) days after the end date of an event and within 120 days after the original transaction date for the underlying ticket purchase. Refunds issued outside such period will not be processed through the Site and must be issued by the Organizer through an alternative payment, such as a check. Subject to the foregoing, refunds issued by an Organizer will be processed immediately via the Site. All communications or disputes regarding refunds are between the Organizer and Buyer, and CELLARPASS will not be responsible or liable for, and Organizer hereby agrees to fully indemnify CELLARPASS and its affiliates for, refunds, errors in issuing refunds, or lack of refunds in connection with the use of the services. (ii) Notwithstanding the foregoing, you acknowledge and agree that CELLARPASS shall have the right to force a refund of any or all tickets at any time for any reason or no reason, including without limitation if CELLARPASS receives complaints from a substantial number (as determined by CELLARPASS in its sole discretion) of Buyers with respect to the applicable event or another event held by Organizer, or CELLARPASS determines in its sole discretion that Organizer has engaged in any fraudulent activity or made any misrepresentations. Further, if one or more Buyer(s) request a refund, whether due to a cancelled event or for any other reason where CELLARPASS would reasonably expect to lose a chargeback, CELLARPASS may, in its sole discretion, issue such refund to such Buyer(s), and Organizer shall then owe the amount of such refund to CELLARPASS. If a payout advance has been issued for an event the Organizer agrees to not issue refunds in excess of the actual ticket funds available for the event.
(d) Credit Card Chargebacks.
Any credit card chargebacks initiated by a Buyer for any reason with respect to an event shall be charged back to the Organizer of such event. All communications and disputes regarding chargebacks are between the Organizer and Buyer, and CELLARPASS will not be responsible or liable in any way for, and Organizer hereby agrees to fully indemnify CELLARPASS and its affiliates for, chargebacks issued in the course of the use of the services.
4.4 Non-Exclusive Remedies.
(a) Payment.
In the event that Organizer fails to pay to CELLARPASS any amount owed pursuant to this TOS when due, such amount shall bear interest calculated from the date due until paid in full at a rate equal to the lesser of (a) ten percent (10%) per annum, and (b) the maximum amount permitted by applicable law. In the event any amounts are owed by Organizer to CELLARPASS under this TOS or otherwise, CELLARPASS may, without limiting its other rights and remedies, (i) deduct such amounts from Organizer’s outstanding balance, whether for that particular event or for any other event that Organizer lists through the Services; and/or (ii) send an invoice to Organizer for such amounts to the extent Organizer’s outstanding balance is insufficient to cover these costs, in which case Organizer shall pay CELLARPASS such invoiced amounts within fifteen (15) days after the date of the invoice. If payment for any amounts due to CELLARPASS hereunder are not made by Organizer when due, CELLARPASS reserves the right, in its sole discretion and without limiting its other rights and remedies, to terminate Organizer’s registration for the Services (including any and all accounts that Organizer may have) and to cancel all other events listed by Organizer.
(b) Confirmation.
Upon receipt of a credit card authorization from each individual ticket purchase, CELLARPASS generates a confirmation message and issues a unique confirmation number. You agree to unconditionally accept, honor, and fulfill all ticketing commitments that have been confirmed by CELLARPASS through the Services, and it is your responsibility to verify the Buyer’s membership status, confirmation number and/or any event restrictions prior to the subject event.
(c) Taxes; Withholding.
(i) You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to your use of the Services and for collecting, remitting and reporting the correct amounts of all such Taxes to the applicable governmental authorities, even if CELLARPASS provides you with tools that assist you in doing so. CELLARPASS does not represent or warrant that any tax tools will meet all tax requirements that may be applicable to you. CELLARPASS cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes. In the event that a governmental authority requires CELLARPASS to pay any Taxes attributable to your use of the Services, you agree to indemnify and reimburse CELLARPASS for such Taxes and all costs and expenses related thereto.
(ii) All Service Fees charged by CellarPass do not include any Taxes except to the extent that a Tax is expressly set forth in the applicable invoice or billing statement, and you agree to pay any Taxes that are imposed and payable on such Service Fees (other than those calculated based on CELLARPASS’S net income) to CellarPass.
(iii) In addition, due to new IRS regulations, if CELLARPASS processes transactions and issues you payouts (A) for more than $20,000 in gross sales and (B) for more than 200 order transactions, in each case during a given calendar year and in the aggregate across all of your accounts, CELLARPASS is required to report to the IRS the gross amount of transactions for which you have been paid in that calendar year and in each month of that calendar year, as well as, your name, your address, and your Tax Identification Number (“Your Tax Information”). Starting in 2013, as part of these new IRS regulations, CELLARPASS is required to either (I) collect Your Tax Information or (II) establish that you are a foreign person not subject to US taxes, before your accounts pass the 200 order transaction threshold in the aggregate. Once your accounts cross the 200 order transaction threshold, you agree that you will not receive any further payments from CELLARPASS until either (I) or (II) above are satisfied.
(iv) CELLARPASS reserves the right to withhold the payment of any amounts owed to you hereunder if CELLARPASS suspects or determines that such amounts have been generated in (A) a fraudulent manner, (B) violation of this TOS, or (C) violation of any applicable laws or regulations (foreign or domestic), or if CELLARPASS is required to do so by applicable laws or regulations (foreign or domestic). Such withholding may be temporary or permanent (as determined by CELLARPASS).
Stripe Direct Payments (SD)
Transactions processed via an Organizer's using the SD option are transacted by the Organizer and immediately deposited to the Organizer's bank account. CellarPass does not have access to funds processed via the SD option nor does CellarPass have authorization to process refunds on behalf of an Organizer using the SD option. Organizers assume full responsibility and liability for ticket sales funds collected via the SD option.
To be a registered user of the Services as an Organizer you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Site registration form (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CELLARPASS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CELLARPASS has the right to suspend or terminate all of your accounts and refuse any and all of your current or future use of the Services (or any portion thereof). CELLARPASS is concerned about the safety and privacy of all its users, particularly children. For this reason, and to be consistent with the terms of use of any FPM service provider or other third party service provider, you must be at least 18 years of age, or the legal age of majority where you reside if that jurisdiction has an older age of majority, to register for an account.
As part of the Site registration process, you will create a password and account. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account, including, without limitation, all actions by sub-users registered under your account. You agree to (a) immediately notify CELLARPASS of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. CELLARPASS cannot and will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account. In the event of any dispute between two or more parties as to account ownership, you agree that CELLARPASS shall be the sole arbiter of such dispute in its sole discretion and that CELLARPASS’S decision (which may include termination or suspension of any account subject to dispute) shall be final and binding on all parties.
7.1 Site Content
You agree that all material, including without limitation information, data, software, text, design elements, graphics, images and other content (collectively, “Content”), contained in or delivered via the Services or otherwise made available by CELLARPASS in connection with the Services (collectively, “Site Content”) is protected by copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and laws. CELLARPASS may own the Site Content or portions of the Site Content may be made available to CELLARPASS through arrangements with third parties. Except as expressly authorized by CELLARPASS in writing or in connection with your use of the intended functionality of the Services, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any Site Content, or post any Site Content on any other web site or in a networked computer environment for any purpose. Reproducing, copying or distributing any Site Content for any other purpose is strictly prohibited without the express prior written permission of CELLARPASS. You shall use the Site Content only for purposes that are permitted by this TOS and any applicable laws and regulations (foreign and domestic). Any rights not expressly granted herein are reserved.
7.2 Your Content
You acknowledge and agree that if you contribute, provide or make available any Content to the Site (“Your Content”), you hereby grant to CELLARPASS a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub licensable (through multiple tiers) right and license to use, reproduce, adapt, modify, distribute, translate, publish, create derivative works based on, perform, display and otherwise exploit Your Content, in whole or in part, in any media now known or hereafter developed, for any purpose whatsoever. You represent and warrant that you have proper license and all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (i) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party, and (ii) complies with all applicable laws and regulations (foreign and domestic). In addition, Your Content must be accurate and truthful. CELLARPASS reserves the right to remove any of Your Content from the Site at any time if CELLARPASS believes in its sole discretion that it does not comply with this TOS. In addition, you agree that CELLARPASS may use your name and logo (whether or not you have made it available through the Site) for the purpose of identifying you as an existing or past customer of CELLARPASS both on the Site and in marketing and promotional materials. You agree to fully indemnify and hold harmless CellarPass from any claim in relation to your content.
7.3 DMCA
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content made available in connection with the Services infringes your copyright, you (or your agent) may send us a notice requesting that the Content be removed, or access to it blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Services should be sent to:
CellarPass
Attn: Legal Department
50 California Street
Suite 1500, San Francisco, CA 94111
Fax: (707) 286-5519
By Email: info@cellarpass.com
8.1 Certain Restrictions
You understand that you are liable for all Content, in whatever form, that you provide or otherwise make available to or through the Services, including to Buyers and other users of the Services. You agree not to use the Services to: upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; harm minors in any way; facilitate gambling, gaming, lotteries, raffles, contests, sweepstakes and/or any other activity featuring the award of a prize other than raffles, contests or sweepstakes conducted in a manner that complies in all respects with CELLARPASS’ Raffles, Contests and Sweepstakes Guidelines; impersonate any person or entity, including, but not limited to, an CELLARPASS representative or forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity; forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services; upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any person or entity; upload, post, email, transmit or otherwise make available any Content related to the sale or provision of goods and services other than the sale or provision of tickets and registrations to events listed on the Site and other goods and services being sold or provided in conjunction with such events; upload, post, email, transmit or otherwise make available any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to otherwise interact with the Services in a manner not permitted by this TOS or expressly authorized by CELLARPASS. You further agree to not interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;intentionally or unintentionally violate any applicable law or regulation (foreign or domestic), including without limitation (i) regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange (e.g., the New York Stock Exchange, the American Stock Exchange or the NASDAQ) and (ii) laws and regulations (foreign or domestic) regarding the sale or resale of tickets (including without limitation with respect to license requirements, maximums or limits on ticket prices, etc.); or stalk or otherwise harass any person or entity.
Raffles, Contests &Sweepstakes Guidelines
The following guidelines, together with the CellarPass TOS and any other CellarPass rules, policies or procedures that may be published from time to time, govern all use of the Services (as defined in the CellarPass Terms of Service) to create, administer, sponsor, sell tickets or entries to, promote or operate any raffles, contests or sweepstakes:
If CellarPass determines (in its sole discretion) at any time that any such raffle, contest or sweepstakes does not comply with these CellarPass Raffles, Contests and Sweepstakes Guidelines and the CellarPass Terms of Service, then CellarPass shall have the rights and remedies set forth in the CellarPass Terms of Service, including to alter, edit or remove such raffle, contest or sweepstakes or any part thereof, as well as the right to suspend or terminate the account holder.
8.2 Certain Remedial Rights
You acknowledge that CELLARPASS does not pre-screen any Content provided or made available by you or any third party in connection with the Services, but that CELLARPASS and its designees shall have the right (but not the obligation) in their sole discretion to (i) monitor, alter, edit, or remove any of your Content, in whole or in part, and/or (ii) rescind and terminate your right to use the Services at any time (with or without notice) for any reason or no reason. You acknowledge and agree that CELLARPASS may preserve your Content and may also disclose your Content for any reason, including without limitation if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this TOS; (c) respond to claims that any of your Content violates the rights of third parties; and/or (d) protect the rights, property, or personal safety of CELLARPASS, its users and/or the public. You understand that the technical processing and transmission of the Services, including Your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
CELLARPASS may provide you with the right to use a sub-domain within the Site (e.g., [sub-domain prefix].CellarPass.com). All such sub-domains are the sole property of CELLARPASS. In the event CELLARPASS provides you with a sub-domain, your right to use such sub-domain may be terminated by CELLARPASS at any time (with or without notice) for any reason or no reason.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. By way of illustration and not limitation, you agree to comply with all applicable laws and regulations (foreign and domestic) regarding the transmission of technical data exported from the United States or the country in which you reside.
In addition, the Services are subject to United States export controls. No part of the Services may be exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods and/or services of the same type as the Services. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not located in, and you are not a national or resident of, any such country. Further, no part of the Services (including any Software) may be exported or re-exported to any person or entity appearing on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List or the Bureau of Industry and Security’s Denied Persons List. By using the Services or any part thereof (including by downloading any Software), you represent and warrant that you are not a person or entity or under the control of or affiliated with a person or entity that appears on any such list.
CELLARPASS may, upon request, and for such fees as CELLARPASS may establish from time to time in its sole discretion, provide additional services to you beyond the functionality of the Site, including without limitation leasing ticket scanning and other equipment, providing consultants and staffers to assist you on the date of your event, and providing dedicated account management services. All such additional services, whether provided prior to, during or following your event, shall be deemed a part of the Services and subject to all the terms and conditions of this TOS. Such additional services shall be set forth in a written Addendum Agreement to this TOS, CELLARPASS Equipment Lease Agreement, and/or other written agreement between you and an authorized officer of CELLARPASS, and shall set forth the Service Fees and the other terms and conditions relating to such additional services. As a condition to the lease of any equipment, you shall enter into a separate CELLARPASS Equipment Lease Agreement.
You agree to defend, indemnify and hold CELLARPASS, and its affiliates, and each of its and their respective officers, directors, agents, co-branders, other partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expense (including, without limitation, reasonable attorneys and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise), or investigation made by any third party (each a “Claim”) due to or arising out of: your Use of the Site and/or your Content; your or any of your affiliates, or any of your or your affiliates officers, directors, agents or employees, use of, contribution to or connection with the Services or violation of any rights of another; your event(s); and/or your violation of this TOS. CELLARPASS shall provide notice to you of any such Claim, provided that the failure or delay by CELLARPASS in providing such notice shall not limit your obligations hereunder. CELLARPASS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting CELLARPASSs defense of such matter.
CELLARPASS reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof) for any reason or no reason with or without notice. CELLARPASS will not be responsible to you for a refund, in whole or part, of Service Fees for any reason, except for Service Fees (excluding the portion of Service Fees paid over to FPMs and other third party service providers used by CELLARPASS in connection with providing the Services) related to refunds issued to Buyers. You agree that CELLARPASS shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
CELLARPASS, in its sole discretion, may terminate your password, accounts (or any part thereof) and/or your right to use the Services, and remove and discard any and all of Your Content within the Services, at any time for any reason or no reason, including, without limitation, for lack of use, failure to timely pay any fees or other monies due CELLARPASS, or if CELLARPASS believes that you have violated or acted inconsistently with the letter or spirit of this TOS. You agree that any termination of your right to use the Services may be effected without prior notice, and acknowledge and agree that CELLARPASS may immediately deactivate or delete your account and all related Content and files related to your account and/or bar any further access to such files or the Services. Further, you agree that CELLARPASS shall not be liable to you or any third-party for any termination of your right to use or otherwise access the Services. All provisions of this TOS that by their nature should survive termination of your right to use the Services shall survive (including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).
The Services may provide, or third parties may provide, links to other Internet websites or resources. Because CELLARPASS has no control over such websites and resources, you acknowledge and agree that CELLARPASS is not responsible for the availability of such websites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, services or other materials on or available from such websites or resources. You further acknowledge and agree that CELLARPASS shall not be responsible or liable for any damage or loss caused or alleged to be caused by or in connection with any use of or reliance on any such Content, advertising, products, services or other materials available on or through any such website or resource.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CELLARPASS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. CELLARPASS MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE SERVICES THEMSELVES (OR ANY PART THEREOF) WILL MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. CELLARPASS IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, BUYER OR OTHER NON-ORGANIZER, ORGANIZER OR THIRD PARTY BEFORE, DURING AND/OR AFTER AN EVENT; AND CELLARPASS WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED IN (I) THROUGH (V) ABOVE. YOU ACKNOWLEDGE THAT CELLARPASS HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USERS’ (INCLUDING BUYERS’, OTHER NON-ORGANIZERS’ AND ORGANIZERS’) CONTENT OR LISTINGS, OR THE ABILITY OF ANY USER (INCLUDING BUYERS AND ORGANIZERS) TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION. IN ADDITION, CELLARPASS IS NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY FPM SERVICE), AND CELLARPASS HAS NO RESPONSIBILITY FOR, AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM, THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTY SERVICE PROVIDER. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Notwithstanding the foregoing, you may report the misconduct of users, Buyers, other non-Organizers, Organizers and/or third parties in connection with the Site or any Services to CELLARPASS. CELLARPASS, in its sole discretion, may investigate the claim and take necessary action.
CELLARPASS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS TOS, FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CELLARPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, (III) AMOUNTS IN EXCESS OF US$100.00 IN THE AGGREGATE FOR ALL CLAIMS FROM A GIVEN ORGANIZER WITH RESPECT TO THE SERVICES, OR (IV) ANY MATTERS BEYOND CELLARPASS’S REASONABLE CONTROL. CELLARPASS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF YOUR CONTENT OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SERVICES, YOU HEREBY AGREE TO RELEASE CELLARPASS, AND ITS AFFILIATES, AND EACH OF ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CO-BRANDERS, OTHER PARTNERS, AND EMPLOYEES FROM ALL DAMAGES (WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LOSSES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES (INCLUDING OTHER ORGANIZERS, BUYERS, AND OTHER NON-ORGANIZERS) IN CONNECTION WITH THE SERVICES, YOUR ACCESS AND USE OF THE SERVICES, OR YOUR EVENT.
IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE:
“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.”
REVISION DATE:June 13, 2023