Terms of Service

Plum Terms of Service

Wine Plum, Inc. and affiliates (collectively, “Plum”) provide: (1) a Plum user account website that may be accessed at app.plum.wine and winery.plum.wine (“Site”), (2) services accessible through the Site (“Web App”), and (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), all for use in conjunction with Plum hardware products (“Products”) and in other ways that Plum provides. The term “Services” means the Site, Web App, and Mobile Apps.

These Terms of Service (“Terms”) govern your access to and use of the Services. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.

 

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITE), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES.

AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.

AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.

 

  1. Overview, Eligibility, Customer Service, Term and Termination

(a) Overview and Relation to Other Agreements. These Terms govern your use of the Services. Your purchase of any Product is governed by the limited warranty provided with that Product (“Limited Warranty”) and may further be governed by the Terms & Conditions of Sale. The software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed solely by the End User Licensing Agreement. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, or rules, and the Privacy Statement (“Privacy Statement”), are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.

(b) Eligibility. You may use the Services only if you can form a binding contract with Plum, and if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Any use or access to the Services by anyone under the age of 21 is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Plum.

(c) Customer Service. If you have any questions or concerns regarding the Products, the Services, or these Terms, please contact Plum.

(d) Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Plum may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Plum in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with Plum.

(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.

 

  1. Accounts

To use the Services, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You may not use another user’s account without the express permission of the account holder. You agree to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Plum of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Plum is not liable for any loss or damage arising from your failure to comply with the above requirements.

 

  1. Access to Services

(a) Access and Use. Subject to these Terms, Plum grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by (i) using the Web App in connection with, and solely for the purpose of, controlling and monitoring the Products at your home or otherwise accessing a service explicitly provided by Plum for your use (the “Permitted Purpose”), and (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose.

(b) Automatic Software Updates. Plum may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates Plum provides. Your continued use of the Services and the Product is your agreement – (i) to these Terms with respect to the Services, and (ii) to the End User License Agreement with respect to updated Product Software.  Notwithstanding the foregoing, nothing set forth herein shall obligate Plum to produce such Updates.

(c) Interface to Third Party Products and Services. Over time, Plum may, but is not obligated to, provide the opportunity for you to interface the Products and Services to one or more third party products and services, through and using the Services (“Third Party Products and Services”). [1]You agree that Plum may exchange information and control data regarding you and your products, including your personally identifiable information, in order to enable the interface you have authorized. This information will be secured and subject to the Plum Privacy Policy.

(d) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Plum; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.

(e) Open Source. Certain items of independent, third party code may be included in the Web App and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.

(f) Privacy Policy. Please review the Privacy Policy. The Privacy Policy describes practices regarding the information that Plum may collect from users of the Products and Services.

(g) Security. Plum cares about the integrity and security of your personal information. However, Plum cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

(h) Modification. Plum reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Plum will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.

(i) Access Outside Certain Countries. Although the Site is accessible worldwide, the Products and Services provided or accessed through or on the Site are not available to all persons or in all countries. If you choose to access the Site from outside a country in which Plum supports the Product and Services listed here:

  • United States

(“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Site is not designed for use in a non-Target Country and some or all of the features of the Site may not work or be appropriate for use in such a country. To the extent permissible by law, Plum accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Site in a non-Target Country. You will be bound by these Terms wherever you access or use the Site or use the Services.

 

  1. Agreed Usage and Limitations of Plum Services

(a) Intended Use of Plum Services. The Services are intended to be accessed and used for non-time-critical information and control of Plum products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Plum’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Plum is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.

(b) Temporary Suspension. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Plum does not offer any specific uptime guarantee for the Services.

(c) System Requirements. The Services will not be accessible without: (i) a working Wi-Fi or Ethernet network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home; and (v) other system elements that may be specified by Plum. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.

(c) Wine Preservation and other Benefits. You understand that wine preservation will be dramatically impacted by how the bottle is stored and handled prior to being added to Plum, the varietal of the wine, the winemaking, and a variety of other factors outside of Plum’s control. Plum does not guarantee or promise any specific length of wine preservation or monetary benefit from the use of the Products or Services or any feature of them. Actual preservation and monetary benefits vary with factors beyond Plum’s control or knowledge.

(g) The Services provide you information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.

 

  1. Limitations of Plum Services Due to Third Parties.

(a) General. Plum Services rely on or interoperate with third party products and services, including services provided by the third party services providers described in Section 5(b) below. These third party products and services are beyond Plum’s control, but their operation may impact or be impacted by the use and reliability of the Plum Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these third products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Plum Services operate, and (iii) Plum is not responsible for damages and losses due to the operation of these third party products and services.

(b) Third Party Service Providers Used by Plum. You acknowledge that Plum uses third party services providers to enable some aspects of the Services – such as, for example, data storage, synchronization, and communication through Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile carriers.

(c) Equipment, ISP, and Carrier. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, home Wi-Fi network, and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your ISP and Carrier.

(d) Third Party Products and Services that Work With Plum Services. Plum may, but is not obligated to, provide the opportunity for you to interface to Third Party Products and Services. These Third Party Products and Services are not Plum products and services and you agree that Plum is not responsible for damages or loss that may be caused by them.

(e) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Plum and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.

(f) Third Party Website Links and Referrals. The Site may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Plum provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites is at your own risk.

(g) Release Regarding Third Parties. Plum is not responsible for third parties or their products and services, including the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. You hereby release Plum and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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.”

 

  1. Ownership and Intellectual Property

You acknowledge that all intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, and Services (i.e., the Site, Web App, and Mobile Apps) are owned by Plum or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Plum and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.

You may only copy parts of the Services (including this Site) on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you may copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of Plum. You must have a license from us before you can post or redistribute any portion of the Services. Plum retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.

 

You may choose to, or Plum may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Plum under any fiduciary or other obligation. Plum may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. Ownership to all Ideas submitted by you shall be the sole and exclusive property of Plum and you shall have no ownership or other usage rights with respect to such Ideas. You also agree that Plum does not waive any rights to use similar or related ideas previously known to Plum, developed by its employees, or obtained from other sources.

 

  1. Indemnity

You agree to indemnify and hold Plum, its officers, directors, employees, affiliates and representatives and agents as well as Plum’s licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of your violation of these Terms. Plum reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Plum and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Plum’s prior written consent. Plum will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

 

  1. Warranty Disclaimers

(a) THE WARRANTY FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE EULA, RESPECTIVELY.

(b) THE SERVICES (I.E., THE SITE, WEB APP, MOBILE APPS AND WINERY APP) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND PLUM AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.

(c) PLUM AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PLUM OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.

 

  1. Limitation of Liability

Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PLUM BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF PLUM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PLUM’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PLUM OR PLUM’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PLUM DISCLAIMS ALL LIABILITY OF ANY KIND OF PLUM’S LICENSORS AND SUPPLIERS.

 

  • Disputes and Arbitration

(a) Contact Plum First. If a dispute arises between you and Plum, our goal is to learn about and address your concerns. You agree that you will notify Plum about any dispute you have with Plum regarding these Terms by contacting Plum.

(b) Binding Arbitration. You and Plum agree, subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), any dispute or claim made by you against us or us against you arising out of or relating to these Terms or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.

(c) Arbitration Procedures. You must first present any claim or dispute to us by contacting Plum to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Plum. Plum may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with clause 11(f) (Notifications). The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration will be Broward County, Florida, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Plum nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.

(d) No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).

(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Plum. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.

(f) YOU MUST CONTACT PLUM WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.

 

This arbitration clause shall survive termination of these Terms.

 

  • General

(a) Changes to these Terms. Plum reserves the right to make changes to these Terms. You should ensure that you have read and agree with our most recent terms of service when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.

(b) Governing Law. These Terms are governed by the laws of the State of Florida without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Broward County, Florida for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.

(c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Plum may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction. “Confidential Information” shall mean the Product Software and all other information disclosed to you that Plum characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least three years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Plum. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Plum in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Plum in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Plum prior to such disclosure to allow Plum an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Plum in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

(d) Entire Agreement/Severability. These Terms constitute the entire agreement between you and Plum regarding the use of the Services. Any failure by Plum to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.

(e) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Plum’s prior written consent. These Terms may be assigned by Plum without restriction. These Terms are binding upon any permitted assignee.

(f) Notifications. Plum may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, hard copy, or posting of such notice on the Site. Plum is not responsible for any automatic filtering you or your network provider may apply to email notifications. Plum recommends that you add @plum.wine URLs to your email address book to help ensure you receive email notifications from Plum.

(g) Disclosures. Please see Plum’s Contact Us page for Plum’s address.

(h) Copyright/Trademark Information. Copyright © 2016, Plum, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of Plum or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Plum or such respective holders. Plum reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.

 

End User License Agreement

By using the software (“Product Software”) that is embedded on the Plum product (“Product”), you agree to the terms of this End User License Agreement (“EULA”) between you and Plum, Inc. (“Plum” or “we”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE. Your use of (a) the website located at plum.wine, app.plum.wine, and winery.plum.wine domains (each, a “Site”), (b) services through the Site (and any updates thereto) (“Site Services”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Software”) is governed by the Terms of Service. Your purchase of the Product (excluding the Product Software) is governed by the Plum limited warranty, the terms of which are provided with the Product. This EULA does not govern your use of the Site, Site Services, or Mobile Software, or your purchase of the Product (excluding the Product Software).

 

This EULA governs your access and use of the Product Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.

 

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.

 

AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.

AS DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.

 

Subject to the terms of this EULA, Plum grants to you a limited and nonexclusive, non-transferable license (without the right to sublicense) to execute one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes.

 

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Plum and provide Plum an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of Plum for each such release.

 

  1. Automatic Software Updates.

Plum may, but is not obligated to, from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates Plum provides. Your continued use of the Product is your agreement to this EULA.

 

The Product Software and all worldwide copyrights, trade secrets, patents and other intellectual property rights therein are the exclusive property of Plum and its licensors. Plum and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Plum with respect to the Product Software shall be Plum’s property. Plum may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Plum does not waive any rights to use similar or related ideas previously known to Plum, developed by its employees, or obtained from other sources.

 

  1. Open Source.

Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Plum makes such Open Source Software, and Plum’s modifications to that Open Source Software, available by written request to Plum at the email or mailing address listed below.

 

  1. Term and Termination.

This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Plum may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Plum. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.

 

  1. Warranty Disclaimer.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PLUM PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. PLUM DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. PLUM MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND PLUM DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.

 

  1. Limitation of Liability

Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PLUM BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF PLUM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PLUM’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO PLUM OR PLUM’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PLUM DISCLAIMS ALL LIABILITY OF ANY KIND OF PLUM’S LICENSORS AND SUPPLIERS.

 

  1. Limitations of Product Software

The Product Software provides you information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.

 

“Confidential Information” shall mean the Product Software and all other information disclosed to you that Plum characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least three years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Plum. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Plum in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Plum in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Plum prior to such disclosure to allow Plum an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Plum in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.

 

  • Alcohol Regulations & Responsible Drinking

Plum Products are for use for those of a legal drinking age in your country, province, or state of residence for the consumption of alcoholic beverages and in countries where the consumption of alcoholic beverages is permitted.

 

Plum Products are designed to promote responsible drinking. Please use the built-in electronic parental lock in the Plum appliance to prevent underage drinking. The Plum appliance keeps track of how much wine is left in each bottle, enables you to adjust pour sizes, and preserves the wine to remove the pressure to finish the bottle to prevent waste. Please use these features to prevent excessive drinking, and please drink responsibly at all times.

 

  • Export Compliance.

The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold Plum, its officers, directors, employees, affiliates, representatives and agents harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.

  • Governing Law; Venue.

This EULA, and any claim, dispute or controversy relating to this EULA, will be governed by the laws of Florida, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Broward County, Florida and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that Plum may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.

 

Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect. Plum may assign its rights under this EULA without restriction.

 

Any notice to you may be provided by email to the address that you registered with Plum.

 

If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

 

All waivers by Plum will be effective only if in writing. Any waiver or failure by Plum to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. Plum will have no responsibility to provide maintenance or support services or Updates with respect to the Product Software. The parties are independent contractors.

 

You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Plum, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Plum for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.

 

Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.

Questions or Additional Information. If you have questions regarding this EULA, please contact Plum.

 

Terms & Conditions of Sale

Welcome to the online store (the “Store”) provided by Plum, Inc. (“Plum”). Your purchase of the Plum appliance and other Plum products (“Products”) from the Store constitutes your agreement to be bound by these Terms & Conditions of Sale (“Terms & Conditions”) and the terms of the version of the Limited Warranty included in-box with a Product. We reserve the right to change these Terms & Conditions at any time, so please review the Terms & Conditions each time prior to making a purchase from the Store. Every time you order Products from Plum, the Terms & Conditions in force at that time will apply between you and Plum. If you have any questions regarding these Terms & Conditions, you can contact Plum.

 

The Store is for retail sales to private consumers only. Please contact sales@plum.wine if you wish to purchase for any commercial or non-home usage.

 

As a consumer, you have certain legal rights. The disclaimers, exclusions, and limitations of liability under these Terms & Conditions will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties, including exclusions relating to products that are faulty or not as described, or the exclusion or limitation of incidental or consequential damages or other rights. For a full description of your legal rights you should refer to the laws applicable in your country or jurisdiction. Nothing in these Terms & Conditions will affect those other legal rights.

Although the Store is accessible worldwide, the Products offered on the Store are not designed and tested for use in all countries. If you choose to access the Store and/or use the Products outside the United States (a “Target Country”), as applicable, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Store is not designed for use in a non-Target Country and some or all of the features of the Store may not work or be appropriate for use in such a country. To the extent permissible by law, Plum accepts no responsibility or liability for any damage or loss caused by your access or use of the Store in a non-Target Country.

THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PLUM PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS & CONDITIONS, YOU SHOULD NOT PURCHASE THE PRODUCTS.

 

  1. Reservations and Pre-Orders.

When you pre-order Products, you agree to pay the full amount plus any applicable taxes and fees we may charge you for the Products. Before you are required to make any payment, you will have an opportunity to review and accept the amount that you will be charged to you. All payments are in U.S. Dollars. We will charge the payment method you specify at the time of payment. You hereby authorize us to charge all sums described herein to such payment method.

 

We may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

 

You may cancel your offer to purchase Products at any time prior to shipment and you will receive a full refund. You will receive an email several days prior to the shipment of your Products in which you will have an option to cancel your offer and you will receive a refund.

Plum reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order.

 

When you pre-order Products, you acknowledge that the design and specifications of the Plum appliance, and the Services, may be altered by us prior to final delivery. If such changes are made, you will be notified in accordance with our standard practices and have an opportunity to cancel your pre-order in accordance with these Terms. You acknowledge that termination of your pre-order shall be your only means of recourse in the event of such changes in design and specification of the Plum appliance and/or Services.

 

  1. Availability and Pricing.

All Products offered on the Store are subject to availability. Prices for the Products are subject to change without notice at any time but changes will not affect any order you have already placed.

 

  1. Sales Tax.

Depending on the order, Plum calculates and charges sales tax in accordance with applicable laws.

 

  1. Resale and Title Transfer.

Purchases made on the Store are intended for end users only, and are not authorized for resale. Title for Products purchased from the Store passes to the purchaser at the time of delivery by Plum to the freight carrier, but Plum and/or the freight carrier will be responsible for any Product loss or damage that occurs when the Product is in transit to you.

 

  1. Shipping and Delivery.

Prices for the Products do not include shipping costs. Our delivery charges are as quoted on the Store website from time to time. The estimated arrival or delivery date is not a guaranteed delivery date for your order. Refused deliveries will be returned to our warehouse. It may take up to 45 days for the returned items to be identified as refused and processed for a refund.

 

The Products available on the Store have been designed, marketed and sold for use by residents of the United States, AS APPLICABLE.  All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in English (U.S.). The Products available on the Store are not intended for use outside of the United States, AS APPLICABLE. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you break any such law.

 

  1. Returns for Refund.

If, for any reason, you want to return the Product you purchased from the Store for a refund, you must notify us no later than 30 days following the date of purchase (the “Cancellation Period”). To initiate a return, you must inform us of your decision within the Cancellation Period by contacting Plum customer support and clearly stating your desire to return the Product. Although it will not affect your right to a refund, please include details on where and when you purchased the Product and your reason for returning the Product. Plum customer service will provide you with a Return Materials Authorization (“RMA”) that must be included with your return shipment to Plum so Plum can identify your shipment and with a return address. If you purchased the Product from somewhere other than the Store, please contact that reseller to obtain a refund.

To receive a refund, you must return your Product (and any promotional merchandise supplied with the Product) with an RMA within the 14 days following the day on which you notify Plum customer support that you desire to return your Product. Unless the Product is faulty or not as described, you will be responsible for all costs associated with returning the Product to us (including uninstallation and the cost of shipping the Product back to Plum).

We will refund the price you paid for the Product plus original delivery cost (up to the value of our Ground delivery option), less the value of any promotional merchandise you received. We may reduce the amount of your refund to reflect any reduction in the value of the Product caused by your handling them in a way which goes beyond what is necessary to establish their nature, characteristics and functioning (e.g., beyond what would normally be permitted in a shop).

 

We will process the refund due to you as soon as possible and, in any case, within 30 days from the date of receipt by Plum of the returned Product. The Product is not eligible for a refund after the 30-day period.

 

  1. Disputes and Arbitration

(a) Contact Plum First. If a dispute arises between you and Plum, our goal is to learn about and address your concerns. You agree that you will notify Plum about any dispute you have with Plum regarding these Terms & Conditions by contacting Plum.

(b) Binding Arbitration. You and Plum agree, subject to clause 7(g) (Protection of Confidentiality and Intellectual Property Rights), to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms & Conditions or your use of the Products to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Products. Subject to clause 7(g) (Protection of Confidentiality and Intellectual Property Rights), any dispute or claim made by you against us or us against you arising out of or relating to these Terms & Conditions or your use of the Products (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.

(c) Arbitration Procedures. You must first present any claim or dispute to Plum by contacting us to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Plum. Plum may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with clause 13 (Notifications). The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration will be Broward County, Florida, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Plum nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.

(d) No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).

(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Plum. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.

(f) YOU MUST CONTACT PLUM WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.

(g) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Plum may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction. This arbitration clause shall survive termination of these Terms & Conditions.

 

  1. Warranties and Disclaimers.

As far as permitted by applicable law, the Store, and all content available on the Store, is provided on an “as-is” basis without warranties or conditions of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose. All products and services purchased through the Store are provided on an “as-is” basis unless otherwise noted in the Limited Warranty included with a Product. You may choose whether to make a claim under these Terms & Conditions or the Limited Warranty or both, but you may not recover twice in respect of the same loss. To initiate a return under the Limited Warranty, you should contact Plum.

 

You use a Product at your own discretion and risk. You will be solely responsible for (and Plum disclaims) any and all loss, liability or damages resulting from your use of a Product, including damage or loss to your wine, computer, home, mobile device, and all other items and pets in your home.

Unless explicitly promising a “guarantee,” Plum does not guarantee or promise a specific level of wine preservation, as preservation time is impacted by how the bottle was stored and handled prior to being added to Plum, the varietal, the winemaking style, and a variety of other factors beyond Plum’s control or knowledge.

 

  1. Limitation of Liability.

Nothing in these Terms & Conditions and in particular within this “Limitation of Liability” clause shall attempt to exclude or limit liability that cannot be excluded under applicable law.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PLUM BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS, EVEN IF PLUM KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PLUM’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO PLUM OR PLUM’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PLUM DISCLAIMS ALL LIABILITY OF ANY KIND OF PLUM’S LICENSORS AND SUPPLIERS.

 

  • Data Protection.

By placing an order for Products, you agree and understand that Plum may store, process and use data collected from your order form or phone/fax/email order for the purposes of processing the order. Plum may also share such data globally within the Plum group of companies. All Plum companies shall protect your information in accordance with the Website Privacy Policy. Plum works with other companies that help Plum provide Products to you, such as freight carriers and credit card processing companies, and Plum may have to share certain information with these companies for this purpose.

 

  • Electronic Communications.

You are communicating with Plum electronically when you use the Store or send email to Plum. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order in the Store, we collect and store your email address. From that point forward, your email address is used to send you information about Plum’s products and services unless you opt-out of such emails using the opt-out link in the emails.

 

Plum may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Plum account, hard copy, or posting of such notice on the Plum website. Plum is not responsible for any automatic filtering you or your network provider may apply to email notifications. Plum recommends that you add @plum.wine URLs to your email address book to help ensure you receive email notifications from Plum.

 

  • Force Majeure.

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

 

If any part of one or more of these Terms & Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will to that extend be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms & Conditions will remain in full force and effect.

 

Failure or delay by us to enforce any these Terms & Conditions will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.

 

  • Governing Law and Jurisdiction.

These Terms & Conditions are governed by the laws of the State of Florida without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Broward County, Florida for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.