Introduction

These terms and conditions govern the rights and obligations of Client and Uncorkd with respect to Services ordered by Client from Uncorkd, unless Client has a separate signed services agreement which shall supercede these terms.

1. Client Responsibilities (Services). Client will be responsible for the accuracy, completeness, quality, integrity, legality and appropriateness of all Client Materials that appear within the app. Client may only use the Services provided for the specific locations and/or businesses specified to Uncorkd. Client is responsible for maintaining the hardware necessary for the Software Services to be provided by Uncorkd as well as responsible for providing an internet connection to the hardware for proper operation.

2. Uncorkd Responsibilities (Services). In consideration of Client’s timely payment of applicable fees, Uncorkd will provide the Services in accordance with these terms and conditions.

3. Uncorkd as Executive Producer. Client acknowledges and agrees that Uncorkd is, and will at all times continue to be, the “executive producer” of the Uncorkd Properties, and Uncorkd will be solely responsible for the design, layout, and maintenance of any and all aspects of the Uncorkd Properties and such elements may change at any time without advance notice. Uncorkd may collect and use data obtained from Client’s usage of the software for improving the software and providing analytics.

4. DISCLAIMERS. NONE OF UNCORKD, ITS AFFILIATES OR CLIENT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. UNCORKD, ITS AFFILIATES, AND CLIENT EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

5. Client’s Indemnification Obligation. Client must, at its own expense, indemnify, defend and hold harmless Uncorkd, its Affiliates and each of their respective officers, directors, employees, representatives, licensees and agents from and against and in respect of any and all claims, liabilities, allegations, suits, actions, investigations, judgments, deficiencies, settlements, inquiries, demands or other proceedings of whatever nature or kind, whether formal or informal, brought against Uncorkd, its Affiliates or any of their respective officers, directors, employees, representatives, licensees or agents, as well as from and against and in respect of any and all damages, liabilities, losses, costs, charges, fees and expenses, including without limitation reasonable legal fees and expenses, as and when incurred, relating to, based upon, incident to, arising from, or in connection with any claim or allegation that the Client Materials or any Client products evaluated by Uncorkd infringe in any manner any Intellectual Property Right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party. Client agrees that it may not, without Uncorkd’s prior written consent, enter into any settlement or compromise of any claim that results in any admission of liability or wrongdoing on the part of Uncorkd or its Affiliates.

6. LIMITATIONS OF LIABILITY. EXCEPT FOR CLIENT’S INDEMNIFICATION OBLIGATIONS IN SECTION 5, UNDER NO CIRCUMSTANCES WILL CLIENT, UNCORKD, OR ANY AFFILIATE BE LIABLE TO ANOTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS RELATIONSHIP, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT FOR CLIENT’S INDEMNIFICATION OBLIGATIONS IN SECTION 6.1 AND PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT WILL UNCORKD, ITS AFFILIATES OR CLIENT’S, TOTAL LIABILITY UNDER THIS RELATIONSHIP EXCEED THE TOTAL FEES PAID FOR SERVICES. FURTHER, NEITHER UNCORKD NOR ITS AFFILIATES WILL BE LIABLE FOR ANY LOSS OF DATA OR ANY INTERRUPTION OF ANY UNCORKD PROPERTY DUE TO ANY CAUSE. The parties agree that the foregoing represents a fair allocation of risk hereunder.

7. Ownership

7.1 By Client. Uncorkd acknowledges and agrees that: (a) as between Client on the one hand, and Uncorkd and its Affiliates on the other, Client owns all right, title and interest in the Client Materials; and (b) nothing in the terms confers in Uncorkd or an Affiliate any right of ownership in the Client Materials.

7.2 By Uncorkd. Client acknowledges and agrees that: (a) as between Client on the one hand, and Uncorkd and its Affiliates on the other, Uncorkd or its Affiliates own all right, title and interest in the Uncorkd Properties (except for any Client Materials appearing in the Uncorkd Properties); and (b) nothing in the terms confers in Client any right of ownership in the foregoing. Uncorkd and its Affiliates will own the Services and any Uncorkd Reports or other derivative works or improvements created under the relationship that are based upon or that incorporate the Client Materials, excluding the Client Materials themselves.

8. Notice; Miscelleanous Provisions

8.1 Governing Law. These terms and conditions shall be governed by and construed using Illinois law, without giving effect to Illinois conflict of law provisions or to constructive presumptions favoring either party.

8.2 Severability. If any provision or part of a provision in these terms and conditions is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in these terms and conditions will not be affected or impaired.

8.3 No General Waiver. Waiver of any one default will not waive subsequent defaults of the same or different kind, and no failure or delay of either party to exercise or enforce any of its rights under these terms will act as a waiver of those rights.

8.4 Amendments. These terms and conditions may be amended from time to time and a minimum of thirty days will be provided before any modifications or new terms take effect.

8.5 Interpretation of these Terms. The parties desire that these terms and conditions be construed fairly, according to their terms, in plain English, without constructive presumptions against the drafting party, and without reference to the section headings, which are for reference only.

9. Length of Term. These terms and conditions are effective immediately, and remain in effect for so long as Client remains a customer of Uncorkd, regardless of actual use of the software.

10. Publicity. Both parties shall have the right to prepare and release press releases and other publicity materials and intended for the press, email, direct mail, websites, broadcasting, television, or other distribution channels. Each party shall have the right to list the other party, on its Internet site or in promotional or sales materials, as one of its commercial relationships, provided that such listing shall be in conformance with the manner in which other commercial relationships are listed.