Last Updated March 22, 2022

1. Agreement

These Merchandising Terms and Conditions (“Terms and Conditions”) govern the services to be provided and procured under the Sales Order to which these Terms and Conditions are linked (“Sales Order”) and, together with these Terms and Conditions, the “Agreement”) entered into by and between Pix.wine Inc. (“Pix”) and the Company set forth on the Sales Order (“Company”). This Agreement comprises the entire agreement between the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations and communications, both written and oral, with respect to the subject matter hereof. This Agreement prevails over any of Company’s general terms and conditions of purchase regardless of whether Company has submitted its own purchase order.

2. Term

The term of this Agreement commences upon the date on which the Sales Order is fully executed (the “Effective Date”) and continues until either party provides written notice of intent to cancel. Either party may terminate this Agreement at any time. If necessary, Pix shall provide to Company a pro rata refund of prepaid amounts for merchandising services not rendered as of the date of termination.

3. Servicing

a. Company is purchasing from Pix the online merchandising package and preparatory consulting work specified in the applicable Sales Order (the “Services”) for the applicable duration set forth therein, and Pix is providing the same for the fees set forth in such Sales Order. Company shall submit all current information regarding its products, such as its wine inventory / availability, ratings, reviews and editorial content, wine prices (including specials), estimated delivery times, and related brand artwork, text and active URLs (collectively, “Product Information”), promptly following Pix’s request. Product Information will not be deemed delivered unless in a format specified or otherwise approved by Pix. Company hereby grants to Pix, Pix’s affiliates and Pix’s associates a license to display, perform, publish, modify and transmit all Product Information furnished for the purposes contemplated hereby.

b. Notwithstanding anything in this Agreement to the contrary, Pix reserves the right to reject or cancel any Product Information at any time, for any reason (including but not limited to Pix’s belief that the Product Information conflicts with Pix’s policy or association objectives, competes with Pix products or services, is false or misleading, may degrade the graphic quality of Pix’s website or may subject Pix to criminal or civil liability).

4. Positioning

Except as otherwise expressly provided in the Sales Order or as a result of the preparatory consulting work done with Pix, positioning of Company’s Product Information is at the sole discretion of Pix. Company acknowledges that Pix has not made any guarantees with respect to usage, statistics or levels of impressions for any Product Information except where expressly stated in the Sales Order. To the extent Pix provides Company with estimated usage, Pix does so only as a courtesy to Company and shall not be held liable for any claims related to usage.

5. Payment

Company shall make payment of the amounts set forth in the Sales Order in accordance with the payment terms set forth therein. In the event any account becomes past due, in addition to such other remedies Pix may have, the full amount of the account shall immediately become due and payable by Company. Company is responsible for all expenses incurred by Pix in connection with the collection of past due amounts payable, including reasonable attorneys’ fees, collection fees and related costs incurred by Pix.

6. Testing

Company authorizes Pix, Pix’s affiliates and Pix’s associates to periodically conduct tests that may affect Company’s use of Pix’s merchandising program, including with respect to formatting, quality, ranking, performance and pricing. To ensure the timeliness and validity of test results, Company hereby authorizes Pix to conduct such tests without notice or compensation to Company.

7. Certain Restrictions

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

8. Representations and Warranties; Disclaimer

a. Company represents and warrants that (i) Company will not provide Product Information that contains or connects to malware, spyware, unwanted software or any other malicious code, or knowingly breach or circumvent any Pix security measure, (ii) Company owns or has sufficient rights in and to the Product Information to provide the Product Information to Pix and allow Pix to use the Product Information as authorized in this Agreement and the Product Information will not infringe the copyright, trademark or any other intellectual property or other proprietary rights of any third party, (iii) the Product Information will not contain any statement that is false, misleading, deceptive, malicious or defamatory, (iv) the Product Information will not violate, or promote any act or omission that could violate, any applicable law, rule or regulation, or contain any claims that are not supported by sufficient prior substantiation, and (v) all information and authorizations provided by Company are complete, correct and current.

b. TO THE FULLEST EXTENT PERMITTED BY LAW, PIX, ON BEHALF OF ITSELF AND PIX’S AFFILIATES AND PIX’S ASSOCIATES, DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MERCHANDISING PROGRAM IS PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND COMPANY USES THE PROGRAM AT COMPANY’S OWN RISK. PIX, PIX’S AFFILIATES AND PIX’S ASSOCIATES DO NOT MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAM OR PROGRAM RESULTS.

9. Indemnification; Limitations on Liability

a. Company assumes all liability for content of the Product Information and agrees to defend, hold harmless, and indemnify Pix, Pix’s affiliates and Pix’s associates, from all claims, losses, judgments, damages, costs and expenses of any nature whatsoever, including but not limited to reasonable attorneys’ fees, for which Pix may become liable by reason of Pix’s publication of Company’s Product Information.

b. LIABILITY FOR TYPOGRAPHICAL ERRORS, WRONG INSERTIONS, LATE PUBLICATIONS, AND/OR NONPUBLICATION, OR OTHER PIX NONPERFORMANCE IS LIMITED TO THE AMOUNT CHARGED BY PIX TO COMPANY FOR THAT PORTION OF THE SPECIFIC SERVICE THAT IS PROBLEMATIC.

c. IN NO EVENT SHALL PIX, ITS LICENSORS, SUPPLIERS OR CONTRACTORS BE LIABLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, TO COMPANY OR TO ANY THIRD PARTY FOR: ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS OR UNREALIZED BUSINESS OPPORTUNITY, ARISING OUT OF THIS AGREEMENT OR THE PUBLICATION OF OR FAILURE TO PUBLISH ANY PRODUCT INFORMATION OR ANY DELAY OR INABILITY TO USE THE SERVICES; AN AMOUNT THAT EXCEEDS, IN THE AGGREGATE, THE FEES PAID TO PIX BY COMPANY HEREUNDER. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. Intellectual Property

a. At Company’s discretion and without obligation to do so, Company may provide suggestions, ideas, enhancement requests, feedback, recommendations and/or other information to Pix with respect to the Services and Company’s use thereof (collectively, “Feedback”) during the term. Such Feedback may include, without limitation, (i) errors or difficulties discovered in the Services and the characteristic conditions and symptoms of the errors and difficulties, (ii) suggestions for enhancement and/or improvement of the Services, and/or (iii) testimonials regarding the Services.

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

11. Force Majeure

Neither party shall be held responsible for delay or failure in performance under this Agreement (other than payment obligations) caused by acts of God, fires, floods, strikes, terrorism (including without limitation cyberterrorism), work stoppages, breakdown of equipment, government action, internet or website downtime, malware or other causes beyond the affected party’s reasonable control.

12. Changes to Terms

Pix may make non-material changes to these Terms and Conditions at any time without notice, but Pix will provide advance notice of any material changes to these Terms and Conditions. The Terms and Conditions will be posted on pix.wine/merchandising-terms-and-conditions. Any changes to the Terms and Conditions will not apply retroactively and will become effective 7 days after posting. However, changes made for legal reasons will be effective immediately upon notice.

13. Governing Law

This Agreement is governed by the laws of the State of California without regard to conflict of laws rules or principles. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.

14. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Company except with Pix’s prior written consent. Pix may transfer and/or assign this Agreement to a successor in connection with a merger or sale of all or substantially all of its business or assets to which this Agreement relates. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.