Martha Stewart Wine Co.
Terms and Conditions
Last updated April 5, 2017
This agreement (the "Terms and Conditions") is a legally binding agreement between you and DRINKS MSWC, LLC, its affiliates, and its and their respective parents and subsidiaries (individually and collectively, "Company," "we," "our" or "us"), and governs your access to and use of the URL, http://www.marthastewartwine.com (the “Site”), and other Martha Stewart Wine Co. websites, social media pages, accounts, and mobile applications owned by or licensed to us (collectively, the "Sites"), any order you place through the Site and, as applicable, your use of the products you purchase. Through use of the Site, we provide an opportunity to buy wine, Club Memberships, Gifts and related products from Licensed Retailers in their respective states (collectively the “Wine Services”). The sale and delivery of orders purchased by you will be executed and fulfilled by licensed third-party retail entities that hold valid licenses issued by state alcohol beverage agencies allowing for the legal sale of wine (the “Licensed Retailers” or “Licensed Retailer”). The Sites are directed to adults aged 21 or older and you must be at least 21 years of age to make a purchase through the Sites and to receive delivery of the products purchased, and a valid government-issued ID will be required upon delivery. By using the Sites, including, without limitation, by participating in the Wine Services, you hereby agree to the terms and conditions set forth below (the “Terms and Conditions”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THE WEBSITE, DO NOT PLACE AN ORDER, AND DO NOT USE ANY PRODUCTS. THESE TERMS AND CONDITIONS INCLUDE A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM AGAINST US TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
MINIMUM AGE REQUIREMENT
If you use the Sites, you represent and warrant that you are at least twenty-one (21) years of age. In no event shall you use the Sites, the Wine Services, register for a Club Membership, make a purchase or purchase a Gift for someone else if you are under the age of 21, nor may you do any of the foregoing activities for the benefit, or on behalf, of any person under the age of 21. We may refuse to register any person, or service any order at any time, in our sole discretion.
SALE OF ALCOHOLIC BEVERAGES
Our role in the transactions contemplated by these Terms and Conditions is that of a marketer and service provider that enables you, the consumer, to purchase wine and related products from Licensed Retailers, and to participate in the Wine Services and/or any other product offers offered on the Sites. You acknowledge that all orders of wine and related products you place through the use of the Sites are processed and fulfilled by such Licensed Retailers, as the actual sellers of wine, and not by us. Any wine you purchase through the use of the Sites from the Licensed Retailers must be for personal consumption only and not for resale. In the unlikely event that a particular wine is unavailable at time of shipping, the Licensed Retailer may substitute a wine of similar style and of equal or greater value in your shipment.
As part of the Wine Services available to you, you will have the opportunity to purchase wine. When you place an order for wine, you will be asked to create an Account if you don’t have one, or to log into your pre-existing account. All offers marketed to you pursuant to these Terms and Conditions are subject to availability. The Company and the Licensed Retailer have the right to refuse orders should they not comply with your state’s laws or for any other reason, and your payment will not be processed for such orders. We shall not be liable for any errors or omissions in product pricing or discounts offered to customers, and in the event of any such error or omission, the Company and/or the Licensed Retailers reserve the right to cancel such order(s) and refund any erroneous charges to you. The Company and/or the Licensed Retailers reserve the right to change product pricing and discounts offered at any time.
As part of the Wine Services available to you, you will have the opportunity to purchase various wine subscriptions that we market and service (the “Club Membership,” “Membership” or “Club”) by following the instructions on the applicable Site or promotional communication. When you order a Club Membership, depending on your selection, you will receive six (6) bottles of wine (reds, whites or mixed, depending on your selection) every six (6) weeks, or twelve (12) bottles of wine (reds, whites or mixed, depending on your selection) every eight (8) weeks as long as your Membership is active. The details of your Membership, including price, applicable taxes and shipping charges, will be provided in an order summary prior to your purchase. With a Membership purchase of 6 bottles every 6 weeks, you receive a special introductory selection of 6 wines for $49.99 plus tax based on your shipping address. Shipping is free with your Club Membership. Every 6 weeks thereafter until you cancel, you will receive 6 bottles of wine, and your credit card will be charged $87.99 plus tax. With a Membership purchase of 12 bottles every 8 weeks, you receive a special introductory selection of 12 wines for $89.99 plus tax based on your shipping address. Shipping is free with your Club Membership. Every 8 weeks thereafter until you cancel, you will receive 12 bottles of wine and your credit card will be charged $159.98 plus tax. We will curate the selection of wines based on the preference you selected. There is no obligation to continue your membership and you may cancel at any time.
You acknowledge and agree that Club Memberships are subject to recurring billing whereby the method of payment linked to your Account will be automatically charged prior to each shipment every six (6) or eight (8) weeks, depending on your Club Membership selection, until you cancel your Membership as set forth in the Billing & Cancellation section below. You will receive a shipment of wine, and your method of payment will be billed prior to each shipment, until you cancel. You will be notified by email in advance of each shipment. In the event product pricing changes with respect to Club shipments, we will notify you in advance of such price modification and you will have the opportunity to cancel your Club Membership prior to being charged for your next shipment.
As part of the Wine Services we market, you may also purchase a wine subscription as a gift for someone else. When you order a wedding, birthday, anniversary or special occasion gift subscription for someone else, the person you designate will receive six (6) bottles of wine (reds, whites or mixed, depending on your selection) either three (3) or four (4) times per year (depending on your selection) (the “Gift” or “Gifts”). The details of your Gift, including price, applicable taxes and shipping charges, will be provided in an order summary prior to your purchase. The person you designate will receive the shipments of wine, and your method of payment will be billed at the time of purchase for the full amount of the three or four shipments you selected. The Gift recipient may be notified by email, depending on the information you provide, in advance of each upcoming shipment.
If you purchased or received a voucher, follow the instructions on the voucher to redeem the Wine Services. Each voucher is governed by these Terms and Conditions and the applicable terms of the voucher promotion as communicated to you. Each voucher code may only be used once and may not be used in conjunction with any other discount, voucher or promotional offer unless the applicable advertisement provides otherwise. All offers are subject to availability and we reserve the right to change product pricing and discounts offered at any time. Certain states do not permit us to honor discounts or vouchers, and such offers are void where prohibited by law. The voucher has two separate values: (a) the amount paid; and (b) the promotional value, which is the additional value beyond the amount paid. The promotional value of any such offer is not refundable unless expressly stated otherwise, or to the extent permitted by law, and will expire on the expiration date as stated. The amount paid will never expire and may be applied toward wine orders, Memberships or Gifts offered and available at the time you redeem if the original promotion specified on the voucher is no longer available.
Your credit or debit card will be charged immediately upon checkout. We will not process orders that attempt to use an incorrect, expired, or over-the-limit credit card. However, in the event such an order is processed, we reserve the right to collect funds for any uncollected transactions owed to us. If you fail to pay any fees or charges when due or if a redelivery fee or restocking fee is imposed, we may charge such amount directly to the credit card identified in your Account and may suspend or terminate your access to the Wine Services, including your Membership. You shall be responsible and liable for any fees, including attorneys' fees and collection costs, that we may incur in our efforts to collect any unpaid balances from you. Your right to use the Wine Services is subject to limits established by us and/or by your credit card issuer.
BILLING & CANCELLATION
- Club Memberships: You acknowledge and agree that Club Memberships are subject to recurring billing whereby the method of payment linked to your Account will be automatically charged every six (6) or eight (8) weeks, depending on your selection, until you cancel your Membership. There is no ongoing commitment to continue your Membership and receive these shipments of wine. You may cancel your Membership at any time by contacting our Customer Service team by telephone at (888) 212-8197. We will promptly stop processing the recurring payments and you will not be charged for any future shipments that have not yet shipped.
- Gifts and other orders: You may cancel pending orders or Gifts at any time prior to shipment by contacting our Customer Service Team at (888) 212-8197. We will promptly cancel your order or Gift upon receipt of such a request within the required timeframe, and the amount of any pre-paid, unshipped shipments that are being canceled will be refunded to the credit card or other payment method used in connection with the original purchase.
SHIPPING & DELIVERIES
Shipments will generally be delivered within 3 – 5 business days and require the signature of an adult over the age of 21 with valid photo ID at the time of delivery. Please note that shipments will not be left at your door without a valid signature, and we are not able to ship to a post office box. If no authorized adult is available to sign for deliveries during the day after multiple delivery attempts, your shipment will be returned to us as undeliverable. Shipping fees are non-refundable, and a $12 restocking fee may apply to shipments that are returned to us as undeliverable. Therefore, we recommend the use of a business address to ensure prompt delivery. Please see our Shipping Policy for more information. All orders placed pursuant to these Terms and Conditions are shipped by Licensed Retailers. Title to such wine and related products, and the risk of loss, passes from the applicable Licensed Retailer to you upon the shipment of your order by the applicable Licensed Retailer. The terms and cost of shipment may vary from order to order. You will be notified at the time of purchase as to the applicable shipping charges (if any) and taxes, which you will be responsible for paying. The Licensed Retailers we work with do not ship to states, counties or cities where shipping wine is prohibited by law. The remittance of any and all federal, state, sales, use and excise taxes to the applicable state authority will be made by the applicable Licensed Retailer related to such wine orders. Product availability and limitations on orders vary by state. Proof that the recipient of a shipment is at least twenty-one (21) years of age will be required upon delivery. In the case of inclement weather or unforeseen delivery complications, it may be necessary to make adjustments to your delivery schedule. If there will be a significant delay, a customer service representative or representative from the Licensed Retailer or common carrier may call or email you to let you know the status of your delivery. We will deliver your order as quickly as possible when the conditions permit. If the delivery address you designate is located in an area that does not permit the delivery of alcoholic beverages to a consumer, we will ask you to provide an alternate, permissible delivery address.
REPLACEMENT ORDERS & REFUNDS
In the event your order is damaged in transit, is incorrect, or you are not satisfied with your order for any reason, please contact our Customer Service team at (888) 212-8197 and we will use our good faith efforts to make your order right. We will replace or issue a Company credit for any unused product up to 180 days from date of purchase. Company credit or replacement product will be provided after the unused product has been returned to us. If you request a refund, once the package is returned to our warehouse, a refund minus shipping costs and a $12 restocking fee will be issued to your credit card or other method of payment, subject to all applicable law.
We may modify these Terms and Conditions at any time, at our sole discretion, without specific notice to you provided, however, that (a) any amendment or modification to the provisions applicable to dispute resolution shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification (as the Terms and Conditions in effect at the time of the subject dispute or incurred changes shall govern, as applicable). The latest version of these Terms and Conditions will be posted to the Site, and you should review these Terms and Conditions prior to using the Sites. Any such changes to these Terms and Conditions will become effective immediately and your continued use of the Sites and your Account following such notification will be deemed confirmation of your acceptance of such changes. You will not be eligible for any compensation because you cannot use any part of the Sites or because of a failure, suspension or withdrawal of all or part of the Sites.
ACCEPTABLE USE POLICY
You hereby agree that you are solely responsible for your conduct in connection with your use of the Sites and for any and all acts and omissions that occur under your Account or password. In connection with your use of the Sites, you further agree not to engage in any of the following prohibited activities: (a) create an Account or make any purchase if you are under twenty-one (21) years of age; (b) interfere with or inhibit the use of the Sites by other users; (c) use the Sites for commercial purposes for yourself and/or third parties (for example, by selling, or attempting to sell, your purchases to others, etc.); (d) create an Account using a false identity, alter-ego, by impersonating a third party, or creating any other false account; (e) interfere with, disrupt or attempt to gain unauthorized access to other Accounts on the Sites or any other computer network; (f) copy, reverse engineer, or attempt to derive the source code of any part of the Sites; (g) post any comment or product review on the Sites or Social Media Pages that is private, obscene, vulgar, violent, harassing, discriminatory or defamatory; (h) disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property of any person; (i) disseminate or transmit viruses, Trojan Horses, or any other malicious code or program; or (j) use the Sites in a manner or engage in any other activity that would violate any of the terms and conditions contained in these Terms and Conditions or any applicable laws. Violation of the foregoing restrictions will result in immediate termination of your Account, and may potentially subject you to further liability. We may investigate any reported violation of these Terms and Conditions and take any action that we deem appropriate. Such action may include, but is not limited to, issuing warnings, closing your Account, suspending future shipments under your Membership or Gift purchase, unilaterally removing posted content and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties.
We grant you the limited right to access and make use of the Sites as a user. The Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Sites (the "Content") are owned by or licensed to us. Martha Stewart® is a registered trademark of Martha Stewart Living Omnimedia, Inc., and is used on the Sites under license from Martha Stewart Living Omnimedia. Unless authorized in writing and in advance by us or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose. No provisions of these Terms and Conditions shall be construed to convey any property right in or license to the Content unless expressly provided to the contrary.
You may have contact or other interaction with third parties by clicking third-party links on our Sites and being directed to third-party websites (the "Third-Party Servicers"). You acknowledge and agree that you are proceeding at your own risk and any such Third-Party Servicers are not under our control. We shall be in no way responsible or liable for any acts, omissions, breaches, representations or warranties made by any such Third-Party Servicers, or for any losses, injuries, or other damages you incur in connection with your contact or other interaction with them, including the content on, or the privacy practices of, such Third-Party Servicers. If you visit the website of, or submit information to, any Third-Party Servicer, your visit and the information you submit are governed by the privacy statement of that Third-Party Servicer. We encourage you to carefully read the privacy statements of any website you visit.
Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). Instagram® is a registered trademark of Instagram, LLC. Pinterest® is a registered trademark of Pinterest, Inc. (“Pinterest”). SnapChat® is a registered trademark of Snap Inc. (“SnapChat”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Please be advised that neither we nor the Martha Stewart Wine Co. is in any way affiliated with Facebook, Instagram, Pinterest, SnapChat, or Twitter, and the Martha Stewart Wine Co. offerings are not endorsed, administered or sponsored by any of those parties.
THE SITES AND THE CONTENT ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY LAW. YOUR USE OF THE SITES IS SOLELY AT YOUR OWN RISK.
THE PRODUCTS AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAFE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESS DISCLAIMED TO THE EXTENT PERMITTED BY LAW PROVIDED, HOWEVER, THAT THIS DISCLAIMER OF WARRANTIES IS NOT APPLICABLE TO RESIDENTS OF THE SATE OF NEW JERSEY.
YOU ALSO HEREBY WAIVE ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, IF APPLICABLE, WHICH PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS FOR 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 AT SUCH TIME, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
ERRORS AND INACCURACIES
We strive to provide complete, accurate, up-to-date information on our Sites. Unfortunately, despite those efforts, human or technological errors may occur. For example, our Sites may contain typographical errors, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted, and to change or update information at any time without prior notice. In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of products offered on the Sites.
The agreement contained in these Terms and Conditions is effective upon your acceptance as set forth herein, and shall continue in full force and effect until terminated. We may suspend or terminate the agreement or the Wine Services, including future shipments under your Club Membership or Gift purchase, or remove or disable access to any portion of the Wine Services or the Sites at any time and for any reason with or without cause or notice to you. You may terminate your Account at any time for any reason by calling (888) 212-8197. We reserve the right to collect fees and charges incurred before you cancel your Account.
You agree to indemnify, defend and hold the Company and its employees, officers, members, directors, agents, representatives, affiliates, service partners, Licensed Retailers, licensors, successors and assigns harmless from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys' fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from, or in any way attributable to: (i) your use of the Sites; (ii) anything you post to the Sites; (iii) your violation of these Terms and Conditions; (iv) your violation of the rights of any third parties; and/or (v) use of the Sites or your Account by any other person accessing the Sites using your computer or Internet access account.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO RESIDENTS OF THE STATE OF NEW JERSEY, THE COMPANY SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITES, YOUR PLACEMENT OR DELIVERY OF ORDERS OF WINE, CLUB MEMBERSHIPS OR GIFTS, OR YOUR USE OF THE PRODUCTS OR SERVICES OFFERED THROUGH THE SITES EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
You and we agree that in the event of any dispute between us, you and we will first try to resolve the dispute by talking with each other. Accordingly, neither you nor we may start a formal proceeding for at least thirty (30) days after one of us notifies the other in writing of a dispute. The parties shall attempt to resolve any controversy or claim arising out of, or relating to, any provision of the agreement or the breach thereof by good faith negotiations between the parties.
You and we agree not to join or consolidate claims in arbitration by or against the other. You and we also agree that you and we will not be entitled to bring any claim as a representative member of a class or in a private attorney general capacity against the other, or against our service partners, Licensed Retailers, local fulfillment retailers, licensors, officers, directors, members, agents, employees, representatives, affiliates and predecessors. YOU HEREBY WAIVE ANY RIGHT TO BRING A CLASS ACTION OR PRIVATE ATTORNEY GENERAL CLAIM. You and we retain our respective rights to make any complaint to regulatory agencies or governmental investigators. A court may sever any portion of this provision that it may find to be unenforceable, except for the prohibition on class, representative or private attorney general arbitration.
Notwithstanding any of the foregoing, if we are suffering irreparable harm arising out of or related to your use of the Sites, we are not precluded from bringing an action or claim with respect thereto before the appropriate federal or state court located in the county of Los Angeles, California, and you consent to personal and subject matter jurisdiction of such court related to any such action or claim.
NOTICE TO CALIFORNIA USERS
Residents of California who use the Sites are entitled to know there are no charges to the consumer for use of our Sites, other than the cost of any products or services purchased therein and any applicable taxes, shipping fees, and other charges associated with such purchases. Unless otherwise stated, these charges appear for each purchase on the order confirmation pages relating to each purchase and e-mailed to the consumer after purchase. We reserve the right to change our pricing. You may contact us to resolve a complaint regarding any aspect of our service by calling (888) 212-8197, emailing us at email@example.com, or writing to Martha Stewart Wine Co., 1370 Trancas Street, Suite 351, Napa, CA, 94558. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in California may be contacted in writing at 400 R. Street, Suite 3090, Sacramento, CA 95814, by calling 1-800-952-5210, or Hearing Impaired at TDD (800) 326-2297, or by email at firstname.lastname@example.org.
Neither the Company nor any service provider, including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives or affiliates , shall be liable for performance of its obligations under these Terms and Conditions if it is prevented or delayed from performing such obligations as a result of (i) any provision of any present or future law or regulation of any state or of the United States, (ii) any act of God, war, civil unrest, or emergency condition, (iii) the unavailability, failure or interruption of the Internet; or (iv) any other circumstances beyond the reasonable control of the Company or its service providers including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives or affiliates.
Any waiver or failure to enforce any provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
In the event that any provision of these Terms and Conditions is declared void or unenforceable, such provision shall be deemed severed from these Terms and Conditions, and these Terms and Conditions shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision.