Vinostics TERMS OF SERVICE

Last updated: May 2, 2021

Please read these Terms of Service (this “Agreement”) carefully. This Agreement is between the entity or person agreeing to this Agreement, either through a representative agreeing to this Agreement on its behalf or directly as an individual (“you” or “your”), and Vinostics Inc. (“Vinostics”, “we”, “our” or “us”). Vinostics offers an online marketplace for collision consumable products that enables buyers and seller to connect and is located at <www.vinostics.com> (the “Platform”). You are also able to access services that we or others may provide to you through or in connection with the Platform (the “Services”). You might access the Platform through a Vinostics mobile application named or branded for Vinostics (each, a “Platform App”). You might access the Platform through the web portal named or branded for Vinostics (the “Platform Web Portal”).

This Agreement constitutes a legally binding Agreement between you and Vinostics. This Agreement governs your access to and use of the Platform and the Services. If you are entering into this Agreement on behalf of an organization, you represent that you have the authority to bind the organization to this Agreement, in which case “you” or “your” will refer to the organization entering into this Agreement. In order to enter into this Agreement you must be the older of: (a) 18 years old; and (b) the legal age of majority in your jurisdiction of residence.

By signing up for an Account (as defined in Section 4.1), by downloading a Platform App, by using the Platform Web Portal, or by using the Platform or the Services, you agree to be bound by this Agreement (including the linked documents referred to in this Agreement), as revised from time to time. If you do not agree with this Agreement or any terms, conditions, rules, policies, guidelines, or practices applicable to the Services, your sole remedy is to discontinue your access to and use of the Platform, the Services, the Platform Apps, and the Platform Web Portal. Our Platform, Services, Platform Apps and Platform Web Portal are only intended for use in Canada and in locations in Canada chosen by Vinostics.

You acknowledge the Vinostics Privacy Statement located at [<www.vinostics.com>] (the “Privacy Statement”), as it may be amended from time to time. For the purposes of this Agreement and the Privacy Statement, “personal information” is any information about an identifiable individual.

Vinostics may update this Agreement at any time, with notice to you, and you should review this Agreement from time to time by accessing the Platform. The changes to the Agreement will be effective on the date when posted. If you continue to access or use the Platform, Services, Platform Apps or Platform Web Portal after the amendment effective date, you thereby agree to the amended Agreement. Before you continue, you should print or save a local copy of this Agreement for your records.

1.                   Access to the Platform; Sellers; Buyers.

1.1                You must register for an Account to access the Platform (each Account holder, a “User”). When accessing the Platform as a User, depending on your use, you may be a Buyer or a Seller (as defined in Section 1.3) and references to Buyer or Sellers are references to you, as applicable. Subject to this Agreement and only during the Term (as defined in this Section 1.1), you may access the Platform solely as made available to you by Vinostics. You must comply with the Agreement and ensure that anyone who uses your Account complies with this Agreement. The “Term” of this Agreement begins when you accept this Agreement or when you first access the Platform or use the Services, whichever is earlier, and continues until this Agreement is terminated in accordance its terms.

1.2                Users who are owners or operators of a body shop or other related businesses who are seeking to purchase certain products or services in connection with same are “Buyers”. When you are accessing the Platform as a Buyer, you must comply with all terms of this Agreement that are applicable to Buyers.

1.3                Users who are suppliers or sellers of collision consumable products or providers of other related services and who wish to sell certain products or services to Buyers are “Sellers”, and the provision of the products, services and facilities in connection with such sales made by Sellers are “Products”. When you are accessing the Platform as a Seller, you must comply with all terms of this Agreement applicable to Sellers.

1.4                The Services enable (a) Sellers to sell their Products to Buyers by making available their Products to interested Buyers through the Platform, and to communicate and transact directly with Buyers; and, (b) Buyers to review Products from Sellers and to communicate and transact directly with Sellers. Vinostics may, for any reason and in its sole discretion, remove any Products from the Platform and cancel any Purchases (as defined in Section 1.5).

1.5                For clarity, Vinostics is not involved in the actual transactions between Users - Sellers or Buyers. For greater certainty:

(a)                 All agreements made for the exchange or purchase of goods or services are made directly between Users (“Purchases”). Our Platform serves only as a marketplace in which the communication between Sellers and Buyers takes place.

(b)                Vinostics does not pre-screen or vet any Products made available by Sellers via the Services. Buyers responsible for conducting their own due diligence on Sellers and their Products.

(c)                 Sellers must be legally able to sell the Products(s) that they made available for sale through the Platform. Sellers represent and warrant that they are the sole owners of Products that they offer for sale through the Platform.

(d)                Sellers are solely responsible for pricing their Products, and for calculating, remitting and repaying all applicable taxes in respect of goods or services they sell through the Platform.

(e)                 Disputes between Buyers and Sellers, including regarding Products or Purchases, must be resolved between them.

1.6                Vinostics may in its sole discretion and without notice immediately suspend your access to the Platform (or use of any part of the Services), including where it considers that there is a security or operational risk to the Platform or any of its, your, or third-party systems. The suspension of use and access is not a breach of this Agreement. Vinostics has no liability to you for suspension under this provision or otherwise.

2.                   Third-Party Services.

2.1                Our Platform may make available to you, for purchase, access to or use of third party software services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into and, in some cases, resold through the Platform (“Third-Party Services”). You acknowledge and agree that Vinostics does not own or control such Third-Party Services, and that they are made available as a convenience only and are not part of the “Platform” or “Services” or subject to any of the warranties (whether express implied, statutory or otherwise) or other obligations with respect to the Platform or Services hereunder. Moreover, the Third-Party Services providers are not partners, agents or representatives of Vinostics and it is up to you to decide whether to use or enable these Third-Party Services and you must rely on your own skill and judgement in electing to do business with such third parties. Vinostics has no obligation to monitor or maintain Third-Party Services and may disable or restrict access to any Third-Party Services at any time without notice. Access to and use of any Third-Party Services, including the availability thereof and uptimes related thereto, is at your own risk and is solely determined by the relevant third-party provider and may be subject to such additional terms applicable to such Third-Party Services. You are solely responsible for maintaining appropriate accounts in good standing with the Third-Party Services providers. Vinostics will have no liability or other obligation to you for such Third-Party Services or Your Content exported to a Third-Party Service, including any unavailability of any Third-Party Services, or any third party provider’s decision to discontinue, suspend or terminate any Third-Party Services.

2.2                By using or enabling any Third-Party Services, you are expressly permitting Vinostics to disclose Your Content or other information to the extent necessary for the Services to interoperate with, or for you to utilize, the Third-Party Services. Vinostics is not responsible for any disclosure, modification or deletion of Your Content resulting from access by, or transmission to, a Third-Party Service.

3.                   Intellectual Property Rights.

3.1                All content, including but not limited to messages, text, images, videos, graphics, files, trademarks, logos and other information and data available on the Platform or provided by Vinostics or its affiliates, employees, agents, licensors or service providers (collectively, the “Vinostics Content”), are owned by Vinostics or its licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property rights.

3.2                Subject to your compliance with all of the terms of this Agreement, during the Term, Vinostics grants to you a personal, non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose license to access and use the Vinostics Content, only as made available to you through the Platform. You are not permitted to download, copy, or otherwise store any Vinostics Content.

3.3                This Section does not apply to Your Content (as defined in Section 6.1); however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Vinostics related to the Platform or its business (“Feedback”) are and will be Vinostics’s exclusive property without any compensation or other consideration payable to you by Vinostics. Vinostics has no obligation to incorporate your Feedback into the Platform or to otherwise use your Feedback. You hereby assign all rights on a worldwide basis in perpetuity to Vinostics in any Feedback and, as applicable, waive any moral rights.

3.4                You agree that Vinostics may use, disclose, or otherwise share any Aggregated Data (as defined in this Section 3.4) generated by access to the Platform or the use of the Services, including use by Users and any of your users, for any purpose including developing, enhancing and providing access to the Platform and use of the Services and Vinostics’ other current and future products and services. “Aggregated Data” means data that does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information.

4.                   Registration and Account.

4.1                You must register for a Vinostics account (an “Account”) and be a User to access the Platform or  use the Services. To access the Platform or use the Services as a Buyer, Vinostics may require that you provide a valid credit card in connection with your Account. You must provide a valid credit card in connection with your Account if prompted to do so by the Platform. When you register for an Account, Vinostics will provide you with one user identification reference that you will use to create a username and password (together, the “User ID”). You agree that you are responsible for maintaining the confidentiality of your User ID. Your User ID, together with any or other User information that you provide through the Platform, which may include your business or company name (if applicable), first and last name of a responsible employee or representative, email address, phone number, location, credentials and, if you are a Seller, information regarding your products and services that will be the subject of Products, and if you are a Buyer, information regarding your business, is your “Profile Information”. You must provide all the Profile Information required by the interface of the Platform when creating your Account. You will provide true, accurate, current and complete Profile Information and you agree not to misrepresent any Profile Information.

4.2                Your Account is not transferable by you to any third party. You agree to not disclose your User ID to any third party. You are solely responsible for all activities that occur under your Account or using your User ID. If you become aware of any unauthorized use of your Account or User ID, you are responsible for notifying Vinostics immediately. It is your responsibility to update or change your Account¸ User ID, and Profile Information, as appropriate.

5.                   Fees; Transaction Terms.

5.1                Where applicable, your access to the Platform and use of the Services is contingent upon your payment of fees or accepting payment of certain fees through Vinostics, as such certain fees and payments are set out on the Platform as amended from time to time. Please note that fees on the Platform are set out in Canadian dollars.

5.2                All fees in connection with the Platform and Services are due when incurred. Vinostics (or a third party payment processor on its behalf) will either charge the credit card you have provided or require you to pay by credit card for all fees as they arise, as well as any processing fee charged to Vinostics by our third party payment processor, if applicable. All fees are non-refundable except in the case where a Seller cancels a Purchase prior to the time where a Seller was to supply or perform the Products. You may be required to prepay certain fees with respect to certain features on the Platform.

5.3                Payments may be processed on behalf of Vinostics by a third-party payment processor using their secure site. Your payment information will be sent to the third-party payment processor. Personal information that you submit during the payment process is subject to our Privacy Statement and may be subject to the privacy statement of Vinostics’ third-party payment processor. 

5.4                All fees are exclusive of applicable federal, provincial, and other governmental sales, goods and services, harmonized, or other taxes, fees, or charges. You are responsible for and agree to pay promptly, all charges in connection with your Account, including applicable taxes or foreign exchange fees. You agree and accept responsibility for keeping all of your Profile Information current, including address, payment information, telephone number, and email address. 

5.5                Vinostics reserves the right to change the prices, fees and charges associated with the Platform or the Services at any time and from time to time without any notice or any liability to you or any other person. Vinostics reserves the right to limit your access to the Platform and the Services provided to you. Vinostics also reserves the right at any time to reject, cancel or terminate any Purchases or other transactions on the Platform.

5.6                Fees are non-refundable and no refunds will be given. It is your responsibility to familiarize yourself with the terms of each Product.

6.                   Your Content.

6.1                The Platform enables you to provide or upload content, including messages, text, images, graphics, trademarks, logos and other information or content (collectively, “Your Content”) to Vinostics for the purpose of making the Platform and Services available to you and other users. You acknowledge and agree that you are solely responsible for all of Your Content that you submit, provide or upload and the consequences for submitting, providing or uploading it. You agree that Vinostics is not responsible for any violations of any laws or rights of third parties resulting from your decision to provide Your Content for use in connection with the Platform and the Services.

6.2                Vinostics will use Your Content in connection with providing the Platform and Services to you and other Users. By uploading or otherwise providing any of Your Content on or through the Platform, you grant to Vinostics a perpetual, worldwide, transferable, sublicensable, non-exclusive, royalty-free license to use, reproduce, process, and display, all or any portion of such Your Content in connection with the Platform and the Services. This license includes the right to host, index, cache or otherwise format Your Content in order to provide the Platform and the Services.

6.3                You represent and warrant that you own Your Content or have the necessary rights and consents to grant the license to Your Content and that Vinostics’s use of your Content will not violate any laws or the rights of any third party.

6.4                You agree to pay all royalties, fees and any other monies owing to any person by reason of Your Content being uploaded, displayed or otherwise provided by you to the Platform.

7.                   Additional Terms for Sellers.

7.1                You represent and warrant that Products that you publish to the Platform will: (a) provide complete and accurate information about the Products (including description, location, availability, date and amenities, and any other information required by applicable law); (b) specify any restrictions, limitations or deficiencies (including timing requirements and accessibility issues); (c) provide such additional information as may be reasonably requested by Vinostics from time to time; (d) comply with this Agreement and applicable laws, including all regulations, sanctions and licensing requirements; and, (e) you will provide the Products in accordance with industry health and safety best practices.

7.2                You agree that:

(a)                 you are solely responsible for all agreements for the Purchase of Products that you enter into with Buyers;

(b)                you are solely responsible for the accuracy and content of the Products that you make available for Purchase by Buyers;

(c)                 when you have posted a Product for Purchase through the Platform, you have extended an offer to the Buyer for acceptance on the terms specified in your posting;

(d)                you are responsible for verifying the full description of a Product before posting such Product to the Platform;

(e)                 you are solely responsible for supplying the Products that are the subject of any Buyer Purchase;

(f)                  you enter into a legally binding agreement with a Buyer on completion of a Purchase of your Product;

(g)                any Purchase that you enter into with a Buyer is between you and the Buyer only, and Vinostics is not a party to such agreement;

(h)                you shall not collude or otherwise agree with any other Seller to hold prices at a particular value, fix credit terms or discounts, or otherwise commit any action contrary to any applicable competition or anti-trust laws; and

(i)                  you shall not bring a claim under or related to this Agreement more than 12 months from when your claim first arose.

7.3                Vinostics may suspend or revoke your access to the Platform and charge you an administrative fee equal to the Purchase fee paid or payable by the Buyer: (a) for your failure to supply the Products; or, (b) if you fail to perform your obligations in connection with any Purchase.

8.                   Additional Terms for Buyers.

8.1                You acknowledge and agree that:

(a)                 you are solely responsible for carefully reviewing the full description of the Seller’s Products before making a Purchase;

(b)                you enter into a legally binding agreement with the Seller for the Products when you make a Purchase;

(c)                 you are solely responsible for: (i) all agreements to Purchase Products that you enter into with Sellers, and, (ii) paying the fees associated with the Purchase of any Products;

(d)                any agreement that you enter into with a Seller is between you and the Seller only, and Vinostics is not a party to such agreement; and

(e)                 you will not bring a claim under or related to this Agreement more than 12 months from when your claim first arose.

8.2                You represent and warrant that your business, and your Purchase of any Products will comply with all applicable laws, including all regulations, sanctions, and licensing requirements.

8.3                Vinostics may suspend or revoke your access to the Platform and charge you an administrative fee equal to the Purchase fee: (a) for your failure to pay the Purchase fee; or, (b) if you fail to perform your obligations in connection with an agreement to Purchase between you and any Seller.

9.                   Monitoring.

Vinostics may, but has no obligation to, monitor Your Content and other content on the Platform. You consent to such monitoring. We may disclose any information necessary or appropriate to: (a) satisfy our legal obligations; (b) protect Vinostics, its Users, and other third parties; (c) operate the Platform properly; or, (d) improve the Platform. Vinostics, in its sole discretion, may refuse to post, remove, or require you to remove, any of Your Content (including any Purchase), in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. 

10.                Acceptable Use and Conduct.

You agree that you will not and will not permit any third party to, directly or indirectly, use the Platform in any manner that (including by publishing or making available Your Content in a way that):

(a)                 infringes, violates, or misappropriates any third party’s intellectual property or other rights;

(b)                contains software viruses, Trojan horses 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;

(c)                 is misleading, deceptive, fraudulent, otherwise illegal or promotes illegal activities;

(d)                is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any third party, or invasive of any individual’s privacy;

(e)                 is harmful to minors in any way;

(f)                  is hateful or discriminatory based on race, colour, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as determined by Vinostics;

(g)                impersonates any other person or falsely states or otherwise misrepresents your affiliation with any third party;

(h)                is meant to obtain access to the Platform or a portion thereof without proper authorization;

(i)                  interferes or attempts to interfere with the proper working of the Platform or prevents others from accessing the Platform or using the Services, or that otherwise negatively affects other persons’ ability to access the Platform or use the Services;

(j)                  licenses, sublicenses, rents or leases the Platform to third parties, or uses the Platform for third party training, commercial time-sharing or service bureau use;

(k)                constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests or constitutes spamming;

(l)                  stalks or otherwise harasses anyone on the Platform or with information obtained from the Platform or the  Services;

(m)               collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;

(n)                attempts to gain unauthorized access to the computer systems of Vinostics or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Platform or the Services;

(o)                posts adult or pornographic content;

(p)                decompiles or reverse engineers the Platform;

(q)                copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from the Platform, or displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Platform;

(r)                  accesses the Platform for purposes that are competitive to Vinostics; or,

(s)                 accesses the Platform for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking.

11.                Disclaimer of Warranties. 

11.1             YOUR USE OF THE PLATFORM, THE SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE PLATFORM OR THE SERVICES, INCLUDING VINOSTICS CONTENT AND ANY THIRD-PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE PLATFORM AND THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VINOSTICS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND OTHER TERMS OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT OR THE RESULTS YOU MAY OBTAIN BY USING THE PLATFORM OR THE SERVICES. 

11.2             VINOSTICS MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND REGARDING: (A) THE VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, TIMELINESS, STABILITY, OR COMPLETENESS OF ANY INFORMATION OR PAYMENTS PROVIDED ON OR THROUGH THE SERVICES; OR, (B) THE PRODUCTS, ANY PURCHASE, ANY PURCHASE AGREEMENT OR THE OUTCOMES THEREOF OR ANY OTHER THIRD PARTY PRODUCTS OR SERVICES OFFERED OR DISPLAYED ON THE SERVICES. VINOSTICS DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES, USERS OR OTHER USERS OF THE PLATFORM OR THE SERVICES AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.

11.3             VINOSTICS DISCLAIMS ANY REPRESENTATION, WARRANTY, CONDITION, OR OTHER TERM THAT THE PLATFORM, SERVICES OR ANY CONTENT, INCLUDING VINOSTICS CONTENT AND ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR SYSTEMS THAT MAKE THE PLATFORM AND SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME VINOSTICS MAY CEASE MAKING THE PLATFORM AVAILABLE OR PROVIDING THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS TO THE PLATFORM AND USE OF THE SERVICES MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SERVICES, OR OTHER ACTIONS THAT THE SERVICES OR VINOSTICS, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. VINOSTICS MAKES NO GUARANTEE REGARDING: (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO THE PLATFORM OR THE SERVICES; OR, (B) THE COMPATIBILITY OF ANY SOFTWARE, HARDWARE OR CONTENT WITH THE PLATFORM OR THE SERVICES.

11.4             VINOSTICS IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE, PAYMENT SERVICE, OR HARDWARE, INCLUDING: SELLERS, BUYERS, USERS, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY VINOSTICS, TELECOMMUNICATIONS PROVIDERS, OR ANY CONTENT, SOFTWARE OR HARDWARE NOT PROVIDED BY VINOSTICS.

11.5             VINOSTICS DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR ANY UNAUTHORIZED USE OF YOUR CONTENT BY THIRD PARTIES OR OTHER USERS OF THE PLATFORM AND THE SERVICES AND IS NOT RESPONSIBLE FOR PROTECTING YOUR CONTENT.

11.6             NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VINOSTICS OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

11.7             THE PLATFORM AND THE SERVICES ARE OFFERED BY VINOSTICS FOR USE IN CANADA ONLY.

12.                Third Party Sites and Your Content.

The Platform may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Platform. These other websites are not under Vinostics’ control, and you acknowledge that Vinostics is not responsible or liable for any third party content. Third-party links on the Platform do not imply endorsement by Vinostics or any association with its operators. You further acknowledge and agree that Vinostics will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third-party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.

13.                Limitation of Liability.

13.1             YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT (INCLUDING UNDER AN INDEMNITY), OR TORT, WILL VINOSTICS OR ITS AFFILIATES, OR ANY OF THEIR OWNERS, OFFICERS, DIRECTORS, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, INTANGIBLE LOSSES, OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF VINOSTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR YOUR INABILITY TO USE THE PLATFORM OR THE SERVICES, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT. VINOSTICS’ MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT ARE LIMITED TO FIFTY CANADIAN DOLLARS (CAD $50.00). TO THE EXTENT ANY APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY PROVIDED IN THIS SECTION 13, VINOSTICS’ LIABILITY WILL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN TO THE CONTRARY, VINOSTICS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF IN ANY WAY WITH RESPECT TO YOUR PROVISION OF AN INDIVIDUAL’S PERSONAL INFORMATION TO VINOSTICS OR THROUGH THE PLATFORM OR THE SERVICES. YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS WILL APPLY WITH RESPECT TO THIRD PARTY LIABILITY OF ANY KIND.

13.2             YOU AGREE THAT VINOSTICS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND IN CONNECTION WITH OR RELATING TO ANY PURCHASE OR OTHER PRODUCTS OR SERVICES PROVIDED OR OFFERED BY USERS, INCLUDING ANY LOSS OR DAMAGE WHICH MAY RESULT FROM THE PRODUCTS PROVIDED BY A SELLER (OR ANY FAILURE TO PERFORM THEREOF), OR A BUYER’S FAILURE TO PAY.

13.3             THE FOREGOING LIMITATIONS WILL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN VINOSTICS AND RECEIVED BY YOU THROUGH THE SERVICES OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.  VINOSTICS WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LIABILITIES, LOSSES OR ANY OTHER CONSEQUENCES THAT YOU MAY INCUR AS A RESULT OF ANY MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE PLATFORM OR THE SERVICES.

14.                Waiver of Jury Trial and Class Action Rights.

WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE PLATFORM, THE SERVICES OR THIS AGREEMENT: (A) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND, (B) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.

15.                Indemnity.

You agree to indemnify, defend and hold harmless Vinostics and its subsidiaries, affiliates, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (together, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Platform or the Services, including in relation to: (a) your use, non-use or misuse of, or connection to the Platform or the Services, or any of Your Content, including your Profile Information; (b) your violation or alleged violation of this Agreement; and, (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein. Vinostics reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Vinostics and you agree to cooperate with Vinostics’ defense of these Claims. You agree not to settle any matter without the prior written consent of Vinostics. Vinostics will use reasonable efforts to notify you of any such Claims upon becoming aware of it.

16.                Cancellation and Termination.

16.1             You may cancel your Account at any time through the web interface of the Services or by emailing [email protected]. This is the only way to cancel your Account.

16.2             Vinostics is under no obligation to store Your Content and may delete your Account and Your Content immediately upon termination of this Agreement. 

16.3             Vinostics reserves the right at any time, and without cost or liability, to terminate this Agreement at its sole discretion for any reason, including for your failure to comply with the terms of this Agreement. Vinostics reserves the right to modify, suspend or discontinue the Services, or any portion of the Services, at any time and for any reason, with or without notice.  

17.                Apple App Store.

 

The following applies to any Platform App you obtain from the Apple App Store (an “Apple Platform App”): You acknowledge and agree that this Agreement is solely between you and Vinostics, and not with Apple, Inc. (“Apple”) and Vinostics, not Apple, is solely responsible for the Apple Platform App and the content thereof. You may only use the Apple Platform App on Apple branded products that you own or control. You must comply with the App Store Terms of Service. In the event of any inconsistency between a term of this Agreement and a term of the App Store Terms of Service, the term of the App Store Terms of Service will prevail. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple Platform App. In the event of any failure of the Apple Platform App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple Platform App (if any) to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple Platform App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Vinostics as the supplier of the Apple Platform App. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple Platform App or your possession and/or use of the Apple Platform App, including, but not limited to (a) product liability claims, (b) any claim that the Apple Platform App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to Vinostics as supplier of the Apple Platform App. You acknowledge that, in the event of any third-party claim that the Apple Platform App or your possession and use of the Apple Platform App infringes that third party’s intellectual property rights, Vinostics, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, to the extent required by this Agreement. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. If you have any questions, complaints or claims with respect to the Apple Platform App, you may direct them to [email protected], or call us at <877-324-2236>, or contact us by email at . You agree to comply with all applicable third party terms of agreement when using the Apple Platform App, including your wireless data service agreement. You and Vinostics acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and you will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

18.                Google Play Store.

 

The following applies to any Platform App you obtain through the Google Play Store (a “Google Platform App”): You acknowledge and agree that this Agreement are solely between you and Vinostics, and not with Google, Inc. or any of its subsidiaries (collectively, “Google”). You must comply with Google’s then-current Google Play Terms of Service. In the event of any inconsistency between a term of this Agreement and a term of the Google Play Terms of Service, the term of the Google Play Terms of Service will prevail. Google is only a provider of the Google Play Store where you obtained the Google Platform App. Vinostics, and not Google, is solely responsible for the Google Platform App. Google has no obligation or liability to you with respect to the Google Platform App or this Agreement. You acknowledge and agree that Google is a third-party beneficiary of this Agreement.

19.                Mobile Device Data Charges.

 

You are solely responsible for any data charges and similar fees associated with your use of the Platform or the Services through a mobile device.

20.                Miscellaneous.

20.1             This Agreement shall be construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles, and you irrevocably consent to submit to the exclusive jurisdiction of the courts in Toronto, Ontario for any claim, proceeding or action under this Agreement. Notwithstanding the foregoing, Vinostics may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Vinostics through injunctive relief and other equitable remedies without proof of monetary damages.

20.2             If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole will not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable will be stricken from this Agreement.

20.3             You agree that if Vinostics does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Vinostics has the benefit of under any applicable law), this will not be taken to be a formal waiver of Vinostics’ rights and that those rights or remedies will still be available to Vinostics.

20.4             Those provisions of this Agreement that by their terms survive, or by their nature are intended to survive the termination of this Agreement, will survive any termination of the Agreement and remain in full force and effect.

20.5             This Agreement is the entire agreement between you and Vinostics related to the subject matter in this Agreement.  This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us or otherwise in accordance with this Agreement. 

21.                Contacting Vinostics.

You may contact Vinostics by email at [email protected].