Terms of use

MODULE 1 GENERAL STIPULATIONS

Article 1 Definitions

1.1.1. Agreement: the agreement between Consumer or Business and WineStein.

1.1.2. Business: a legal entity or person acting in the course of a business or profession.

1.1.3. Consumer: a natural person not acting in the course of a business or profession.

1.1.4. General Terms and Conditions: these general terms and conditions.

1.1.5. Advice: through the WineStein technology requested wine food pairing, wine glass or temperature advice.

1.1.6. WineStein: the Dutch limited liability private company ”WineWineWine B.V.”, acting under the trade name “WineStein”, or any affiliated company using these General Terms and Conditions.

Article 2 Support

1.2.1. You are entitled to raise questions or issues regarding WineStein and its services, software and/or apps by sending an e-mail to support@winestein.com. A question should be addressed in Dutch or English.

1.2.2. Support as set out in this paragraph is rendered “best effort”, therefore WineStein cannot warrant a specific result and/or service level, unless a service level agreement was agreed upon. A service level agreement can only be agreed upon in case you are a Business.

Article 3 Prices, rates invoicing and payment

1.3.1. The agreed upon prices and rates can be increased yearly as of from January 1st by WineStein with a maximum percentage of 5% (five percent).

1.3.2. In case direct debit or credit card charge fails, or another way of payment is agreed upon, you are obliged to pay WineStein issued invoices within 7 (seven) days after invoice date. In default of paying within the aforementioned term, you are in final default after WineStein notified you of default in which notification is stated a reasonable term to remedy the default. Thereafter all issued invoices become immediately due and payable without any notification. Moreover, WineStein is entitled to applicable statutory interest for every month you are in default, this without prejudice to the right of WineStein to demand additional damages, included reasonably incurred extrajudicial costs.

1.3.3. WineStein is entitled to suspend its duties and services if you are in arrears. In this case you are not entitled to any damages.

1.3.4. In case you are a Business you hereby agree to be invoiced digitally.

Article 4 Limited liability

1.4.1. WINESTEIN IS NOT LIABLE FOR ANY ATTRIBUTABLE SHORTCOMINGS REGARDING THE OBLIGATIONS UNDER THE AGREEMENT, NOR FOR ANY OTHER CLAIMS, INCLUDING BUT NOT LIMITED TO TORT, EXCEPT IN CASE OF WILLFUL MISCONDUCT OR CONSCIOUS RECKLESSNESS OF THE TOP LEVEL MANAGEMENT OF WINESTEIN.

1.4.2. In case what is stipulated in previous paragraph is legally impossible, WineStein is only liable for direct damages caused by an attributable shortcoming as mentioned in previous paragraph with a maximum of what WineStein charged and was actually paid, value added tax excluded, in three preceding months, this with a maximum of € 10 (ten Euros). This limitation voids in case of willful misconduct or conscious recklessness of the top level management of WineStein.

1.4.3. WineStein is not liable for any indirect damages, consequential damages, lost profits and lost saving.

1.4.4. WineStein is not obliged to perform any obligation if prevented from doing so due to a circumstance for which WineStein cannot be attributed, nor under the law, legal act or due to generally prevailing opinions (force majeur).

Article 5 Applicable law and disputes

1.5.1. The Agreement is governed by the laws of The Netherlands.

1.5.2. Disputes arising out of, or connected with, the Agreement or connected ancillary Agreements, are settled through alternative dispute resolution in accordance with the arbitration regulations of the “Stichting Geschillenoplossing Automatisering”, having its registered office in The Hague. This without prejudice to the right of each party to make use of the (arbitral) interlocutory proceedings and to take protective measures (see www.sgoa.org). The language of the dispute resolution is set in English, unless (later) otherwise agreed upon.

1.5.3. If the dispute can be submitted to the district court (“kantonrechter”) because the dispute falls within its jurisdiction, the previous paragraph does not apply. In that case the dispute can solely be submitted to the district court.

1.5.4. Before submitting the dispute as stated in 1.5.2 any party can take the initiative to start a procedure in accordance with the mediation regulations of “Stichting Geschillen Oplossing Automatisering” having its registered office in The Hague. The procedure is meant to resolve a dispute with mediation by one or more mediators. The other party is obliged to cooperate actively. The obligation encompasses at least the legally enforceable obligation to visit one meeting of mediators along with the other party , to give this form of extrajudicial dispute resolution a chance. Every party has the right to end the mediation procedure after the first meeting. All this without prejudice to the right of Parties to take protective measures or to make use of (arbitral) interlocutory proceedings if considered appropriate (see www.sgoa.eu).

1.5.5. Paragraphs 1.5.2 to 1.5.4 do not apply in case you are a Consumer. In that case the laws regarding which court is entitled to take notice of a specific dispute prevail.

Article 6 Other general stipulations

1.6.1. If any provision of the Agreement or General Terms and Conditions shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. In that case parties will consult each other in order to agree upon a substitute stipulation.

1.6.2. In case WineStein does not invoke a right under the Agreement, it does not construe a waiver regarding those rights.

1.6.3. You are not allowed to transfer the rights out of the Agreement to a third party without prior consent of WineStein.

1.6.4. WineStein is allowed to transfer the rights out of the Agreement to a third party without prior consent.

1.6.5. These General Terms and Conditions can be subject to unilateral change. In case of a change WineStein will notify you in due time, so you can terminate the Agreement in case you do not wish to adhere to the new General Terms and Conditions.

MODULE 2 STIPULATIONS REGARDING THE USE OF WINESTEIN APPS

Article 2.1 Applicability of this module.

2.1.1. This module is applicable in case you are a Business or Consumer and you use a WineStein App.

Article 2.2 Additional definitions

2.2.1. Store: the (online) app store in which the WineStein App can be acquired.

2.2.2. Commercial Use: every use in a commercial setting or as non-Consumer, including, but not limited to: using a WineStein App to advise hotels, restaurants or bars, liquor stores, (wine) distributors, participants of a wine tastings whilst hosting the wine tasting or working for the organization that organizes wine tastings.

2.2.3. In-App Purchase: every purchase of extra functionality from within a WineStein App.

2.2.4. Personal Use: using a WineStein App for personal use and not for Commercial use.

2.2.5. WineStein App: an Application provided by WineStein enabling Consumer or Business to request a wine food pairing combination with a mobile phone, tablet computer or other personal mobile device.

Article 2.3 Intellectual property rights

2.3.1. The intellectual property rights regarding WineStein Apps remain vested in WineStein. To use a WineStein App you are granted a license.

2.3.2. It is not allowed to reverse engineer the WineStein App or the underlying algorithms.

2.3.3. WineStein reserves all the rights not granted explicitly by these General Terms and Conditions.

Article 2.4 Grant of license

2.4.1. In principle WineStein grants an immediately revocable, non-transferable, non-sublicensable, non-exclusive license to use a WineStein App for Personal Use.

2.4.2. In case you wish to use a WinStein App for Business Use, you need to acquire a license for Business Use. In that case you need to contact WineStein. WineStein will issue a proposal for the intended use. After initial payment WineStein grants you an immediately revocable, non-transferable, non-sublicensable, non-exclusive license to use a WineStein App for Business Use.

2.4.3. In case a WineStein App is not used for Personal Use, and no license for Business Use was acquired from WineStein, WineStein is entitled to a direct due and payable penalty of € 2,000 (two thousand Euros). This without prejudice to the right of WineStein to claim full damages.

2.4.4. In case of In-App Purchases , the purchased functionality is subject to the same license which was granted to you in the first place. This means that if you are granted a license for Personal Use, the acquired extra functionality can only be used for Personal Use.

2.4.5. In case you are granted a license for Business Use, you can also use the WineStein App for which a Business Use license was acquired for Personal Use.

Article 2.5 Personal data

2.5.1. We will process your personal data in accordance with the Dutch Data Protection Act of 1998 and in accordance with our privacy policy which can be found at http://www.winestein.com/disclaimer

Article 2.6 Subscriptions

2.6.1. In case the In-App-purchase is a subscription to certain functionality, the duration of the subscription is one (1) month, or one (1) year, depending on which type of subscription You purchase. Prior to purchase We will let You know which type of subscription You purchase.

2.6.2. The subscription is always automatically renewed after lapse of the initial or renewed duration, for the same period of time as the initial duration, and for the same price as agreed upon for the initial duration.

2.6.3. The subscription can be cancelled by You at any time by using the settings in the Store. In that case the subscription remains active, including its functionality, until the duration as set out in 2.6.1 lapses.

MODULE 3 STIPULATIONS REGARDING RESTAURANTS, HOTELS AND STORES

Article 3.1 Applicability of this module.

3.1.1. This module is applicable in case you are a Business and you use WineStein in a restaurant, hotel or store. This can be, but not limited to, in the form of a tablet computer menu or kiosk.

Article 3.2 Additional definitions

3.2.1. Software: WineStein software for tablet computers, mobile phones, kiosk and/or other personal devices which software makes use of the Webservice

3.2.2. Webservice: the underlying software hosted by WineStein in the cloud (API) which is used to generate Advices based on the input the underlying software receives from Software.

3.2.3. Subscription Key: the subscription key that is necessary for Software to make use of the Webservice.

Article 3.3 Intellectual property rights

3.3.1. The intellectual property rights regarding the Software and accompanying documentation remain vested in WineStein. To use the Software you are granted a license to use the Software. The intellectual property rights regarding the Webservice remain vested in WineStein. To let the Software make use of the Webservice, you will need to acquire a subscription to the Webservice.

3.3.2. It is not allowed to reverse engineer the Software, Webservice or the underlying algorithms.

3.3.3. WineStein reserves all the rights not granted explicitly by these General Terms and Conditions.

Article 3.4 Grant of license

3.4.1. WineStein hereby grants you as a Business a right to use of Software and the Advices the Software generates . This grant of license does not encompasses more than that the Software and the Advices can be used in accordance with the purpose for which Software was acquired. This purpose is agreed upon in the Agreement. If you foresee that the use Software and the Advices is not in accordance with the agreed upon purpose (anymore), you are obliged to consult WineStein in order to expand the grant of license. In that case WineStein can stipulate additional conditions.

3.4.2. The afore granted rights are non-exclusive, non-sublicensable, immediately revocable and non-transferable.

3.4.3. An issued Subscription Key is only valid for one (1) location and one (1) device, unless otherwise agreed upon.

3.4.4. The afore granted license is for the duration of the subscription for the Webservice. This means that in case the subscription for the Webservice is terminated, the granted license is automatically, without prior notice, revoked.

Article 3.5 Duration

3.5.1. The Agreement enters in to force the moment both Parties signed it.

3.5.2. The Agreement is entered into for a duration six (6) months.

3.5.3. The Agreement will be every time tacitly extended for a period of time of one (1) month, unless a Party terminates the agreement one (1) month before expiry in writing (letter or e-mail).

3.5.4. Without prejudice to what is agreed upon, WineStein is entitled to terminate the Agreement in writing without any prior notice partially or completely and with immediate effect:
a. if you commit an imputable failure regarding one or more of your obligations and/or compliance is impossible.
b. if it becomes clear to WineStein that you are not in a position and/or willing to fulfill your obligations.
c. if you have applied for a suspension of payments, have been granted this suspension of payments or have filed for bankruptcy, have been declared bankrupt, are about to liquidate your company, ceases the operations or appears to be insolvent.
d. if WineStein will suffer reputational damage through the cooperation with your or if further cooperation will lead to foreseeable reputational damage of WineStein.
3.5.5. In case of termination as set in paragraph 3.5.3, WineStein cannot be held liable for any payment of damages. Your are obliged to hold WineStein harmless and indemnify WineStein for claims of third parties which could arise in connection with the termination as described in the previous paragraph.

3.5.6. Obligations, which by their nature are intended to survive the termination, will remain in force after termination. The termination of the agreement will not explicitly exempt parties from: intellectual property rights, applicable law, dispute resolution. This also applies in case the Agreement is terminated due to attributable shortcomings of WineStein.

Article 3.6 Connectivity

3.6.1. You are responsible for timely selecting and acquiring suited communication facilities and (computer) hardware to actually make use of the Software and/or Webservice.

3.6.2. You agree with that you are responsible for entering into an agreement with a vendor to acquire the services and (computer) hardware as mentioned in the previous paragraph.

3.6.3. WineStein is not responsible and/or liable for all costs regarding the telecommunication facilities and (computer) hardware as mentioned in previous paragraph, which costs are caused by using the Software and/or Webservice.

Article 3.7 Disclaimers

3.7.1. Despite the fact that the Software and Webservice are composed by WineStein with great due care, WineStein cannot be held responsible for any errors, omissions or defects in the Software and/or Webservice.

3.7.2. The Software and Webservice are delivered “as is ” and “as available”, therefore with all its visible and non-visible errors and defects, and without any warranty the WineStein Software or Webservice is fit for purpose.

MODULE 4 STIPULATIONS REGARDING WEB STORES AND THE USE OF THE API

Article 4.1 Applicability of this module.

4.1.1. This module is applicable in case you are a Business and acquiring the API in order to implement the functionality of the API in your own software or to implement the functionality of the API in you wine related web store.

Article 4.2 Additional definitions

4.2.1. API: The WineStein Application Programming Interface

4.2.2. Availability: the percentage of the time in the Service Window in which Business should be able to use the API or Service without interruptions.

4.2.3. Maintenance Window: the period in which the API or Service can be unavailable and that is reserved for maintenance.

4.2.4. Service Window: the period of time outside the Maintenance Window in which the API or Service should be available.

4.2.5. Web Store: a store on the internet where wines, food or related products are sold.

4.2.6. Working Hours: hours on Working days between 09.00 and 17.00 hours (GMT + 1).

4.2.7. Working Days: Monday till Friday, with the exception of Dutch national holidays.

Article 4.3 Terms of service

4.3.1. WineStein strives for an Availability of 99% (ninety nine percent) a year. In case the API or Service is not Available the Availability will be deemed fully and uninterrupted in case the unavailability was less than four (4) consecutive hours.

4.3.2. WineStein reserves the non-Working Hours for maintenance. This reservation is included in the Maintenance Window.

4.3.3. In case maintenance is necessary outside the Maintenance Window, WineStein will notify you in advance within a period of time of at least (3) three Working Days. This planned maintenance is also included in the Maintenance Window.

4.3.4. WineStein determines the policy regarding new versions of the API. WineStein provides you with the most recent functionality or version of the API of Service.

4.3.5. You are not entitled to use the API in a way that it can result in damaging the API, damages for WineStein and/or third parties, or in a way that it can result in interruptions of the Availability.

4.3.6. WineStein offers its API on “fair use” basis. That means that WineStein in principle does not limit the system and network load caused by you. However, WineStein reserves the right to take measures in case of excessive usage. Excessive usage is usage that is significantly higher than the usage of an average client of the API.

4.3.7. After first notification you have to take measures immediately to end excessive system and/or network load. WineStein is entitled to suspend the service and/or any other obligation out of the Agreement in case of continuous excessive system and/or network load.

4.3.8. In case of structural excessive system and/or network load Parties will consult each other about the costs.

4.3.9. You will ensure careful handling regarding the credentials (username and password) provided by WineStein, therefore you will administer the credentials as a good administer.

4.3.10. You indemnifies WineStein for all claims of third parties based on breaches of what is set out in this paragraph.

4.3.11. You are responsible for timely selecting and acquiring suited communication facilities and (computer) hardware to actually make use of the API and additional functionality.

4.3.12. You agree with that you are responsible for entering into an agreement with a vendor to acquire the services and (computer) hardware as mentioned in the previous paragraph.

4.3.13. WineStein is not responsible and/or liable for all costs regarding the telecommunication facilities and (computer) hardware as mentioned in previous paragraph, which costs are caused by using the API and its additional functionality.

4.3.14. You are obliged to present as soon as possible, or upon first request of WineStein, functional and/or graphical designs for approval to WineStein if the API and/or its additional functionality will be implemented in a Web Store. The approval will not be withheld by WineStein unreasonably.

Article 4.4 Intellectual property rights

4.4.1. The intellectual property rights regarding the API and accompanying documentation remain vested in WineStein.To use the API you will be granted a right to use.

4.4.2. It is not allowed to reverse engineer the API or the underlying algorithms.

4.4.3. WineStein reserves all the rights not granted explicitly by these General Terms and Conditions.

Article 4.5 Grant of user rights

4.5.1. WineStein hereby grants you a right to use of the API and the data the API returns. This grant of license does not encompasses more than that the API and its returned data can be used in accordance with the purpose for which you subscribed to the API. This purpose is agreed upon in the agreement. If you foresee that the use API is not in accordance with the agreed upon purpose (anymore), you are obliged to consult WineStein in order to expand the grant of user rights. In that case WineStein can stipulate additional conditions.

4.5.2. The agreed upon purpose can never be the use to create an (similar) API, unless explicitly otherwise agreed upon.

4.5.3. You are obliged to use the logo and registered trademark of WineStein if data resulted from the use of the API is presented.

4.5.4. For this purpose only, WineStein hereby grants you a right of usage. It is not allowed to use the logo and trademark for other purposes, these rights remain reserved by WineStein, unless other use is allowed by prevailing and applicable laws regarding registered trademarks.

4.5.5. The afore granted rights are non-exclusive, immediately revocable and non-transferable.

4.5.6. If the Agreement states that the billing of the use of the API depends on the amount of calls on the API, the data provided by the API should not be stored longer by your software than strictly necessary for the processing that data. In that case the data will never be stored for improper purposes, including but not limited to: (i) reverse engineering of the algorithm of the API and (ii) minimizing the amount of API calls.

4.5.7. An issued API key is only valid for one (1) location and one (1) device, unless otherwise agreed upon.

Article 4.6 Duration

4.6.1. The Agreement enters in to force the moment both Parties signed it.

4.6.2. The Agreement is entered into for a duration six (6) months.

4.6.3. The Agreement will be every time tacitly extended for a period of time of one (1) month, unless a Party terminates the agreement one (1) month before expiry in writing (letter or e-mail).

4.6.4. Without prejudice to what is agreed upon, WineStein is entitled to terminate the Agreement in writing without any prior notice partially or completely and with immediate effect:
a. if you commit an imputable failure regarding one or more of your obligations and/or compliance is impossible.
b. if it becomes clear to WineStein that you are not in a position and/or willing to fulfill your obligations.
c. if you have applied for a suspension of payments, have been granted this suspension of payments or have filed for bankruptcy, have been declared bankrupt, are about to liquidate your company, ceases the operations or appears to be insolvent.
d. if WineStein will suffer reputational damage through the cooperation with your or if further cooperation will lead to foreseeable reputational damage of WineStein.
4.6.5. In case of termination as set in paragraph 4.6.4, WineStein cannot be held liable for any payment of damages. Your are obliged to hold WineStein harmless and indemnify WineStein for claims of third parties which could arise in connection with the termination as described in the previous paragraph.

4.6.6. Obligations, which by their nature are intended to survive the termination, will remain in force after termination. The termination of the agreement will not explicitly exempt parties from: intellectual property rights, applicable law, dispute resolution. This also applies in case the Agreement is terminated due to attributable shortcomings of WineStein.

Article 4.7 Confidentiality and security

4.7.1. Both parties shall observe strict confidentiality regarding information about its organizations, the way the API operates, functionality, etc. Without prior written consent of the other party it is not allowed to disclose information, data carriers and information at its disposal to third parties. It will disclose only to personnel if and so far this is necessary to fulfill the agreed upon duties. Parties shall let its personnel adhere to this stipulation regarding non disclosure.

4.7.2. Regarding data from the other Party, regardless the way it was provided, regardless the data carrier it was provided on, the receiving party shall:
a. take care of all fair measures for a safe storage;
b. not use the data for any other than the purpose than is agreed upon;
c. not store the data longer than is needed for fair execution of the agreed upon obligations and to place the data, including copies whereof, at the other Party’s disposal, or destroy them after prior consent of other Party;
d. only let the agreed upon obligations be executed by persons deemed trustworthy by the obligated party;
e. cooperate with executing surveillance by or on behalf of the other party on storage and usage of data.
4.7.3. Parties are responsible for entering in to an agreement with its involved personnel and/or third parties regarding non disclosure pursuant to this article.

Article 4.8 Disclaimers

4.8.1. Despite the fact that the API is composed by WineStein with great due care, WineStein cannot be held responsible for any errors, omissions or defects in the API. This also applies for Advices.

4.8.2. The API is delivered “as is ” and “as available”, therefore with all its visible and non-visible errors and defects, and without any warranty the API is fit for purpose.