Last Updated: August 26, 2021
1. Acceptance of Terms
By accessing or using www.skurnikwines.com, www.skurnik.com, www.tastings.skurnik.com, the Skurnik mobile applications and various related services (collectively, the “Site”), you agree to be bound by these Terms and all of the terms incorporated herein by reference.
By accepting these Terms, you represent that you are 21 years of age or older and that, if you have accepted these Terms on behalf of any person or entity, you represent that you have legal authority to do so and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
If you do not agree to every provision of these Terms, you may not, and we do not authorize you to, access or use the Site or any features provided on the Site.
By accessing or using the Site, you represent and warrant that you have not been previously suspended or removed from the Site or engaged in any activity that could result in suspension or removal from the Site.
These Terms may be revised at any time for any reason, and Skurnik may provide you notice of these changes by any reasonable means, including by providing notice through the Site. You can determine when we last updated the Site by referring to the “Last Updated” legend at the top of these Terms. Except to the extent that your express consent to any revised Terms is required under data protection law, by continuing to access, browse or use the Site, you confirm your acceptance of the revised Terms and all the terms incorporated herein by reference. We strongly recommend that you periodically visit this page of the Site to review these Terms. If you do not agree to the revised Terms, you may not access or use the Site.
2. Registration and Personal Data
In order to access and use certain areas or features of the Site, you will need to register for an account. Each registration is for a single user only.
By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Site on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Site or your account. Any changes to your registration information may be made by sending such changes to support@Skurnik.com. If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Site and we cannot be held liable for any missed communications by you from the site regarding your suspension or termination.
By creating an account, you also consent to receive electronic communications from Skurnik (e.g., via email or by posting notices to the Site). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
3. License to Access and use the Site and Content
Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the Skurnik logo and all designs, text, graphics, pictures, information, data, software, User Content (as defined in Section 6), other files and the selection and arrangement thereof (collectively, “Content”) are the property of Skurnik or our licensors or users, as applicable, and are protected by U.S. and international copyright and other laws.
Subject to these Terms, you are hereby granted a personal, non-exclusive, non-transferable, non-sublicensable license to access and make personal, non-commercial use of the Site and Content. All rights not expressly granted herein are reserved. You do not acquire any ownership interest in the Site or Content under these Terms, or any other rights thereto other than to use the Site in accordance with the license granted, and subject to all terms, conditions and restrictions of these Terms.
However, such license is subject to these Terms and does not include any right to, and you shall not, directly or indirectly: (a) sell, resell or use commercially the Site or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Site or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the Site or Content, except as expressly permitted by us, (f) use the Site to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (g) interfere with the Site or servers or networks used in connection with the Site; or (h) use the Site or Content other than for their intended purposes.
Any use of the Site or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Skurnik or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Content.
The Skurnik logo, and any other Skurnik product or service names, trademarks, logos, or other indicia (“Marks”) that may appear on the Site are the property of Skurnik or its subsidiaries, affiliates or third parties, and may not be copied, imitated or used, in whole or in part, without our prior written permission. Nothing contained in the Site shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of Skurnik or such third party that may own such Mark. Your misuse of any such Mark, or any other Content, is strictly prohibited.
6. User Content
You are solely responsible and liable for all data, information, and other materials (“User Content”) that you submit, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the Site. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of information made public through the Site. IF YOU CHOOSE TO SUBMIT TO US, OR OTHERWISE MAKE ANY USER CONTENT PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND WE SHALL HAVE NO LIABILITY THEREFOR.
You agree that you will not, and will not permit anyone else to, directly or indirectly:
- Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable;
- Transmit any User Content: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data;
- Forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Site.
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Site at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
7. Rights in User Content
We do not claim any ownership interest in your User Content.
You acknowledge and agree that Company may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of Skurnik, its customers or the public.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Skurnik, the Site or the services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Skurnik. Skurnik shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
9. Linked Sites
We have not reviewed all of the websites linked to the Site and are not responsible for the content of any third-party pages, any other websites linked to the Site, or any products or services offered by third parties linked to the Site. Nothing in the Site, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by Skurnik. Your choice to access a link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites. Skurnik reserves the right not to link, or to remove the link, to a particular website at any time. Any links to third party websites are provided as a convenience to you and are neither owned nor operated by Skurnik. We have no control over these linked websites and make no representations or warranties with respect to these linked websites or third-party products or services. Your viewing and use of any third-party websites is at your sole discretion and risk.
You shall indemnify, hold harmless, and, at Skurnik’s option, defend Skurnik, its officers, directors, members, employees, agents and representatives (the “Skulnik Parties”) from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by the Indemnified Parties resulting from any third-party claim, suit, action or proceeding relating to or arising from your use of the Site, any User Content that you Transmit to or through the Site, any Feedback you provide, any violation of these Terms by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Site or any of its features. You further agree that the Skurnik Parties shall have control of the defense or settlement of any third-party claims, unless the Skurnik Parties exercises their option to require you to defend them. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Skurnik Parties.
THE SITE AND THE CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SKURNIK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE. IN ADDITION, SKURNIK HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY RESULTS WILL BE ACHIEVED, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
SKURNIK DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. SKURNIK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. SKURNIK DOES NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND SKURNIK SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
BY ACCESSING OR USING THE SITE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
12. Limitation of Liability; Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SKURNIK PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITE (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE SKURNIK PARTIES, OR FROM EVENTS BEYOND SKURNIK’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SKURNIK RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE SKURNIK PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THE SITE EXCEED THE AMOUNT PAID TO THE SKURNIK PARTIES FOR ANY PRODUCTS OR SERVICES IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE SKURNIK PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
13. ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SKURNIK AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
YOU AND SKURNIK AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR THE SERVICES SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING CONSUMER DISPUTES. Arbitration uses a single, neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under these Terms that a court can award under these Terms. You and Skurnik agree that any in-person arbitral hearing would occur in New York, New York before the American Arbitration Association. . Skurnik further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Skurnik are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and the termination of your use of the services.
REGARDLESS OF THE FORUM, YOU AND SKURNIK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Skurnik agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
14. Modifications to the Site
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) at any time.
15. Special Admonitions for International Use
This Site is hosted in the United States of America. If you are located outside of the United States of America and you contact us, please be advised that any information you provide to us will be transferred to the United States of America and that by submitting information, you explicitly authorize such transfer.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Site at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
17. Governing Law and Jurisdiction
Skurnik operates the Site from the state of New York, USA. These Terms and the transactions they may contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of New York, USA, including its statutes of limitations, but without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sale of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in New York shall not apply. Except as otherwise provided in Section 18, the exclusive forum for the resolution of any dispute relating to these Terms shall be in the state courts New York, USA., or the United States District Court for the Southern or Eastern District of New York, and each of the parties agrees to personal jurisdiction of such courts with regard to any dispute relating to these Terms, and you agree to service of process on you by e-mail to the address you have submitted on the Site, if any, and by any other means permitted by law.
All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to Skurnik at the following contact: support@Skurnik.com. Any notices to you may be made via either e-mail or postal mail to the address in Skurnik’s records or via posting on the Site. Please report any violations of these Terms to Skurnik at the contact listed above.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
20. Procedure for Making Claims of Copyright Infringement
We expect users of the Site to respect the intellectual property rights of others. If you believe in good faith that any of the content on the Site infringes your copyright, please provide our copyright agent the written information specified below.
a. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
b. A description of the copyrighted work that you claim has been infringed.
c. A description of where the material that you claim is infringing is located on the Site.
d. Your address, telephone number and email address.
e. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
f. A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
Skurnik’s copyright agent for notice of claims of copyright infringement can be reached as follows:
Michael Skurnik Wines, Inc.
Att: Compliance Director
100 Jericho Quadrangle, Suite 140
Jericho, NY 11753
These Terms constitute the entire agreement between you and Skurnik relating to your access to and use of the Site. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Skurnik. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent, or subsequent circumstance, and Skurnik’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.