Retailer may promote Retailer’s wine deals listed on the Site (“Retailer Offering”) by purchasing credits from Wine Kloud (“Promote Credits”) and paying Wine Kloud a fee for such credits (“Promote Fee”), in accordance with, and subject to the terms of, the Retailer Agreement and these Terms and Conditions (“Deal Promote Program”). In order to participate in the Deal Promote Program, Retailer must create an account on the Site (“Retailer Account”) by providing certain registration information ("Registration Information") as prompted by Wine Kloud on the Retailer Portal of the Site. Registration Information may include Retailer’s name, address, telephone number, email address, and applicable payment information (e.g., credit card numbers, expirations dates, which we use solely to fulfill the purchase of Promote Credits you requested). You agree that the Registration Information you provide is true, accurate, current and complete, and that you will update and maintain the truthfulness, accuracy and completeness of such information. Failure to comply with this provision may, at Wine Kloud's option, result in immediate suspension or termination of your right to use our Site, including any participation in the Deal Promote Program.

As part of the registration process for use of the Site, you will be required to select a password. Your password is intended to be confidential and is for your individual use only. You are solely responsible for maintaining the confidentiality of any password you use to access the Site and you agree not to disclose your password to any unauthorized person. You will immediately notify Wine Kloud if you become aware of any loss or theft of your password or any unauthorized use of your password. Wine Kloud has no obligation to maintain the confidentiality of your password. Wine Kloud reserves the right to delete or change a password at any time and for any reason, including, but not limited to, your disclosure of your password in violation of Wine Kloud's password policy as set forth in this paragraph.

Wine Kloud will charge you the Promote Fee in exchange for the Promote Credits, each as set forth in the Retailer Agreement, in order to provide access to the Deal Promote Program offered through the Site ("Promote Fee"). The Promote Fee will be billed concurrently with your purchase of Promote Credits. Retailer may choose which wine deals it wants to promote, and the manner in which it wants to purchase and allocate Promote Credits to such wine deals, by logging into its Retailer Account and selecting the appropriate options.

Wine Kloud is authorized to promote selected wine deals through any platform, including the Site, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Wine Kloud, its affiliates or business partners. The wine deals, which may include Retailer’s wines, may be offered to all or part of Wine Kloud's subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. Retailer will not be charged for these Wine Kloud discretionary promotions.

Wine Kloud reserves the continuing right to reject, revise, or discontinue any Retailer Offering, at any time and for any reason in Wine Kloud's sole discretion, and to terminate the Retailer Offering and to remove all references to the Retailer Offering from the Site; and redirect or delete any URL used in connection with the Retailer Offering.

Wine deals on the Site evidence the Retailer Offering, and Wine Kloud customers will be sent to Retailer’s website to complete their purchases. Retailer is, for all purposes, the seller of the Retailer Offering and Retailer agrees to honor the prices through any Retailer Offering expiration date. Retailer agrees that in providing the Retailer Offering, Retailer will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms of the Retailer Offering. Unless disclosed in the Retailer Offering, Retailer further agrees not to impose different terms or different policies than what is imposed on its non-Wine Kloud customers through any Retailer Offering expiration date.

Retailer is responsible for all customer service in connection with the Retailer Offering and for supplying all goods and services stated in the Retailer Offering. Your dealings with any Wine Kloud customer, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Wine Kloud customer exclusively and do not involve Wine Kloud. Wine Kloud does not investigate its customers for credit worthiness—you should make whatever investigation or other research that you deem necessary or appropriate before selling any wine to a Wine Kloud customer. You further agree that Wine Kloud is not responsible for your interactions and dealings with any Wine Kloud customer. YOU HEREBY WAIVE THE RIGHT TO BRING OR ASSERT ANY CLAIM AGAINST WINE KLOUD RELATING, DIRECTLY OR INDIRECTLY, TO ANY INTERACTIONS OR DEALINGS WITH ANY WINE KLOUD CUSTOMER, AND YOU HEREBY RELEASE WINE KLOUD FROM ANY AND ALL LIABILITY FOR OR RELATING, DIRECTLY OR INDIRECTLY, TO ANY INTERACTIONS OR DEALINGS WITH THE WINE KLOUD CUSTOMER.

Wine Kloud is not responsible or liable for any content, data, advertising, products, goods or services available or unavailable from, or through, Retailer mentioned on the Site. You agree that Wine Kloud is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection therewith.

EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WINE KLOUD DOES NOT WARRANT OR GUARANTEE THAT, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN THE EVENT THAT, THE SERVICES OFFERED ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE RETAILER OFFERING OR ANY WINE DEALS ON THE SITE ARE ERROR-FREE, OR THAT ANY RETAILER OFFERING OR WINE DEALS WILL RESULT IN ANY REVENUE OR PROFIT FOR RETAILER.

The Promote Fees paid to Wine Kloud are compensation to Wine Kloud for marketing, promoting, and advertising the Retailer Offering. Retailer will accept the amounts received from Wine Kloud customers as payment in full for all products offered by Retailer pursuant to the Retailer Offering. Retailer is solely responsible for complying with any contractual requirements imposed by its contracts with third-party payors, including but not limited to requirements related to offering discounted services.

It is Retailer's responsibility to determine what, if any, taxes apply to the payments Retailer makes or receives, and it is Retailer’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Wine Kloud is not responsible for determining whether taxes apply to Retailer’s transaction with Wine Kloud or its customers, or for collecting, reporting or remitting any taxes arising from any transaction with or by Retailer and Wine Kloud’s customers. Retailer shall be responsible for paying any and all sales, use or any other taxes related to the Retailer Offering.

"Customer Data" means all identifiable information about purchasers generated or collected by Wine Kloud or Retailer, including, but not limited to, purchasers' names, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

Retailer shall use Customer Data only to fulfill its obligations in connection with the Retailer Offering as authorized by the Agreement. Retailer expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the provision of goods and services to purchasers), and not to enhance a file or list owned by Retailer, or any third party. Retailer represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Retailer engages any third party to facilitate its obligations hereunder, Retailer shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Retailer or a third party engaged by Retailer to facilitate its obligations hereunder, Retailer shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.

Retailer shall immediately notify Wine Kloud if Retailer becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Wine Kloud, and shall cooperate with Wine Kloud in the investigation of such breach and the mitigation of any damages. Retailer will bear all associated expenses incurred by Wine Kloud to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Retailer's reasonable possession or control. Upon termination or expiration of the Agreement, Retailer shall, as directed by Wine Kloud, destroy or return to Wine Kloud all the Customer Data in Retailer's or any agent of Retailer's possession.

The Agreement will continue in effect until terminated by either party in accordance with this Section ("Term"). Wine Kloud is authorized to terminate the Agreement, at any time for any reason, upon written notice to Retailer. Retailer is authorized to terminate the Agreement upon seven (7) business days prior written notice to Wine Kloud. Termination of the Agreement will not in any way affect Retailer's obligation to honor purchases of wine by Wine Kloud’s customers through use of the Site. Provisions in the Agreement that are intended to survive termination will continue in full force and effect after the Term.

Wine Kloud and its business partners may communicate with Retailer with regard to products, promotions, and other services that may be of interest to Retailer. This may include email or other communications. Wine Kloud may also solicit Retailer’s opinion for market research purposes.

Retailer grants to Wine Kloud a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Retailer's name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content, including product labels, provided, specified, recommended, directed, authorized or approved to use by Retailer (collectively, "Retailer IP"); and (b) any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content, including product labels, provided, specified, recommended, directed, authorized or approved for use by Retailer (collectively, "Third Party IP"), in each case in connection with the promotion of any Retailer Offering in all media or formats now known or hereinafter developed ("License"). For the avoidance of doubt, and without limiting the foregoing, Retailer grants to Wine Kloud the right to use its product labels in connection with the Retailer Offering and any other Retailer’s Retailer Offering. Any use of the Retailer IP or Third Party IP as contemplated in the Agreement is within Wine Kloud's sole discretion.

Retailer acknowledges and agrees that, as between the parties, Wine Kloud owns all interest in and to the Site, Customer Data, Wine Kloud trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Site, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content, including product labels, created by Wine Kloud or at Wine Kloud's direction, or assigned to Wine Kloud, and any materials, software, technology or tools used or provided by Wine Kloud to promote the Retailer Offering and conduct its business in connection therewith (collectively "Wine Kloud IP"). Retailer shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Wine Kloud IP or any portion thereof, or use such Wine Kloud IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution. Retailer shall keep the Wine Kloud IP confidential, and shall not prepare any derivative work based on the Wine Kloud IP or translate, reverse engineer, decompile or disassemble the Wine Kloud IP. Retailer shall not take any action to challenge or object to the validity of Wine Kloud's rights in the Wine Kloud IP or Wine Kloud's ownership or registration thereof. Except as specifically provided in the Agreement, Retailer and any third party assisting Retailer with its obligations in the Agreement, are not authorized to use Wine Kloud IP in any medium without prior written approval from an authorized representative of Wine Kloud. Retailer shall not, without prior written approval from an authorized representative of Wine Kloud, include any trade name, trademark, service mark, domain name, social media identifier, of Wine Kloud or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Retailer shall not, without prior written approval from an authorized representative of Wine Kloud, use or display any Wine Kloud IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Retailer or a third party and Wine Kloud. All rights to the Wine Kloud IP not expressly granted in this Agreement are reserved by Wine Kloud.

If Retailer provides Wine Kloud or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Wine Kloud product or service or otherwise in connection with the Agreement, any Wine Kloud IP, or Retailer's participation in the Retailer Offering or any wine deals (collectively, "Feedback"), Retailer irrevocably assigns to Wine Kloud all right, title, and interest in and to Feedback. In the event your assignment to Wine Kloud is invalid for any reason, you hereby irrevocably grant Wine Kloud and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Retailer warrants that: (A) Feedback is Retailer's original work, or Retailer obtained Feedback in a lawful manner; and (B) Wine Kloud and its sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Retailer agrees to provide Wine Kloud such assistance as Wine Kloud might require to document, perfect, or maintain Wine Kloud's rights in and to Feedback.

Retailer represents and warrants that: (a) Retailer has the right, power and authority to enter into the Agreement; (b) Retailer, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Retailer's goods and services will be provided; (c) the terms and conditions of the Retailer Offering do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol; (d) Retailer owns all interest in and to the Retailer IP and has licensing rights in (with the right to sublicense to Wine Kloud) the Third Party IP, and has the right to grant the License stated in the Agreement; (e) the Retailer IP and the Third Party IP, the goods or services, Wine Kloud's use and promotion thereof, and the results of such goods or services, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (f) the Retailer IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (g) the Retailer Offering and any advertising or promotion of Retailer's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (h) Retailer and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Retailer Offering to provide the goods or services described in the Agreement; (i) Retailer's business information and payment details as provided in the Agreement are accurate and Retailer is the authorized entity to remit the funds payable to Wine Kloud; (j) Retailer is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in the Agreement) to any third party, in whole or in part, for any purpose, and Retailer is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of completing transactions with Wine Kloud customers initiated through the Site.

To the extent allowed under applicable law, Retailer agrees to defend, indemnify and hold Wine Kloud, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Retailer of the Agreement, or the representations and warranties made in the Agreement; (b) any claim for state sales, use, or similar tax obligations of Retailer arising from sales in connection with the Retailer Offering; (c) any claim arising out of a violation of any law or regulation governing Retailer's goods and/or services; (d) any claim arising out of Retailer's violation of law or regulation governing the use, sale, and distribution of alcohol; (e) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Retailer, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (f) any claim arising out of or relating to the manner in which Wine Kloud administers the Deal Promote Program, or the success or failure of the Deal Promote Program; and (g) any claim arising out of Retailer's misuse of Customer Data, or any violation of an applicable data privacy or security law. Wine Kloud maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Wine Kloud and Retailer. Retailer's duty to defend and indemnify Wine Kloud includes the duty to pay Wine Kloud's reasonable attorneys' fees and costs, including any expert fees.

The terms for the Retailer Offering described in the Agreement are confidential, and Retailer agrees not to disclose the terms described in the Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Retailer has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, Wine Kloud is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

EXCEPT FOR RETAILER'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. YOU AGREE THAT WINE KLOUD SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF THE RETAILER OFFERING OR ANY WINE DEAL. WINE KLOUD'S SOLE AND COMPLETE LIABILITY TO RETAILER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES RECEIVED BY WINE KLOUD HEREUNDER FOR THE PRECEEDING SIX (6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

Any dispute, controversy or claim between Retailer and Wine Kloud arising out of or relating to the Agreement, including any disputes relating to the Deal Promote Program, whether sounding in contract, tort, statute or otherwise, shall be finally resolved by arbitration. The arbitration shall be conducted by one arbitrator in English and in accordance with the International Rules of the American Arbitration Association, which shall administer the arbitration and act as appointing authority. The place of the arbitration shall be New York, New York. The decision of the arbitrator shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys' fees to the prevailing party) shall be paid as the arbitrator determines. The decision of the arbitrator may be entered by any court of competent jurisdiction. Retailer agrees to submit to the jurisdiction of the state and federal courts in New York County, New York for the purposes of any judicial proceedings to obtain interim relief and in aid of the arbitration or judicial proceedings to confirm or enforce the award, and agree to waive all objections to the exercise of jurisdiction and venue in such courts. Notwithstanding the foregoing, Wine Kloud may seek preliminary injunctive relief from a court of law in the event of a breach by Retailer, without any requirement to (i) post a bond or other security or (ii) prove actual damages or that monetary damages will not afford an adequate remedy.

WINE KLOUD AND RETAILER EACH AGREE THAT EACH OF THEM SHALL BRING ANY DISPUTE AGAINST THE OTHER IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WINE KLOUD AND RETAILER EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.

The parties are independent contractors. Nothing in the Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.

The Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

Retailer is not authorized to transfer or assign its rights or obligations under the Agreement, whether by operation of law or otherwise, without Wine Kloud's prior written consent. Any waiver must be in writing and signed by an authorized signatory of Wine Kloud. Wine Kloud is authorized to transfer or assign the Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Retailer.

If any provision of the Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of the Agreement are not affected.