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Terms of Use

Terms of Use – Barefoot Australia
May 2016

Welcome to our site (the "Site"). The Site is intended to provide you with information about our wines, campaigns and sponsored events. It also allows you to interact with us and others and provides you the opportunity to contact us directly. While we want you to enjoy the experience of visiting our Site, we also want you to understand the terms to which you agree when visiting the Site. References to "we" or "us" or "our Brand" herein refer to the Barefoot brand, owned by E. & J. Gallo Winery.

Compliance with Terms

By accessing the Site, you are agreeing to these Terms of Use, our Privacy Policy (insert link), as well as other legal notices, terms and policies posted on the Site from time to time (together referred to as "Terms"), all of which are expressly incorporated herein by this reference.

You agree to use the Site only in accordance with the Terms, whether you are a "Visitor" (which means that you simply browse the Site) or you are a "Member" (which means you have registered with us for the Site, if registration is available on the Site). The term "User" means a "Visitor"" or a "Member". Please read and save all of the Terms. If you do not agree with the Terms, do not use the Site or any of its features. If you register to become a Member you will be required to indicate your acceptance to these Terms of Use during the registration process.

Amendment

We may amend or terminate any Terms at any time. If we amend or terminate any Terms, we will notify you of such amendment or termination by posting the revised Terms on the Site and such revised Terms will be effective at the time we post them on the Site. Each time you use the Site, you should visit and review the then current Terms that apply to your transactions and use of the Site. Your continued use of the Site after we have posted revised Terms signifies your acceptance of such revised Terms. If you are dissatisfied with the Site, its content or any Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the Site. The Terms are the entire agreement between you and our Brand with respect to your use of the Site.

Eligibility

You are not permitted to view the Site unless you are 18 years of age or older. If you are younger than 18, please do not visit the Site. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 18 years of age.

Use of the Site and its features and registration to be a Member ("Membership") is void where prohibited. By using the Site and its features, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Site and its features does not violate any applicable law or regulation.

Term

The Terms, as we may revise them from time to time, shall remain in full force and effect while you use the Site features or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member's Account Settings page. We may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, the Terms will remain in effect and you will remain bound by them except that your right to use the Site as a Member will terminate. Any terms or conditions in these Terms of Use that must survive to give effect to their meaning, shall survive the termination, expiration, or cancellation of these Terms of Use.

Passwords

If registration is available on the Site, then when you register to become a Member, you will be asked to choose a user name and password. You are solely responsible for maintaining the confidentiality of this information. You are not permitted to allow anyone else to use your user name and password to log into the Site. You must notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account so please be vigilant in protecting its confidentiality.

Your Use of the Site

Users have a non-transferable, non-exclusive license to access the Site, to view information contained at the Site, and to interact with the Site solely for their own personal use and not for any commercial purpose. You agree not to use the Site for any unlawful purpose. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Site or any portion thereof or use it in any manner not expressly authorized by the Terms. You agree not to copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Site.

Tampering with the Site, misrepresenting the identity or age of a User, using buying agents or conducting fraudulent activities on the Site are prohibited.

User Content

Generally

We may, but are not obligated to, allow you to upload content for display on the Site. If we allow this feature, please choose carefully the information you post on the Site, provide to other Users and/or otherwise make available to us and through the Site. Your content may not include any form of Prohibited Content, as outlined below. Despite this prohibition, information, materials, products or services provided by other Members (for instance, in their profile or displayed on the Site in areas in which Users can post content) may, in whole or in part, be unauthorized, impermissible or otherwise violate the Terms, and we assume no responsibility or liability for this material. If you become aware of misuse of the Site or its features by any person, please click on the "Contact Us" link on the Site pages and follow the directions as to how to contact us and notify us of the misuse.

We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice or explanation, and without liability. We expressly reserve the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Site if we determine, on reasonable grounds, that you have violated the Terms, pose a threat to us, our suppliers and/or our Users or for any other purpose we determine in our sole discretion.

Proprietary Rights and Grant of License to E. & J. Gallo Winery

We do not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on the Site (if applicable). After posting your Content to the Site, you continue to retain any such rights that you may have in your Content, subject to the limited license herein.

By displaying, publishing Content on the Site, or otherwise submitting Content to us (collectively, "posting"), you hereby grant to us an irrevocable, perpetual, worldwide, royalty-free, non-exclusive license to use, modify, delete from, add to, create derivative works of, publicly perform, publicly display, reproduce and distribute (and to sublicense the foregoing rights through multiple tiers of licensees) such Content on or through the Site and/or in connection with advertising and promoting the Site (including, for example, through screen shots) and/or our products and any other E. & J. Gallo Winery products or brands in any media formats and through any media channels now existing or developed in the future. For purposes of clarity, the license granted to us herein permits us to use your Content for (among other things) commercial exploitation and in connection with any of our brands or products and in any of our social media platforms. From time to time, we may remove Content from the Site, permanently or temporarily, provided that even if we do remove such Content from the Site, we shall have no obligation to cease our other uses of the Content as permitted above.

You represent and warrant that: (i) you own the Content posted by you on or through the Site or otherwise have the right to grant the licenses set forth above, and (ii) the posting of your Content on or through the Site does not violate the privacy rights, publicity rights, contract rights, intellectual property or any other rights of any person or entity. In furtherance of the foregoing, you agree that you will not post Content that violates or is not in compliance with our Acceptable Use Policy. You agree to be fully responsible for and to pay any and all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you.

The Site may contain Content provided by Barefoot, including, without limitation, text, images and logos ("Brand Content"). Brand Content is protected by copyright, trademark, patent, trade secret and other laws, and we own and retain all rights in the Brand Content and the features and functionality of the Site. We hereby grant you a limited, revocable, nonsublicensable license to reproduce and display the Brand Content (excluding any software code) solely for your personal use in connection with viewing the Site.

The Site may contain Content of Users and other licensors. Except as provided within the Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use for any commercial purpose, or sell any Content appearing on or through the Site.

Content Posted.

We may reject, refuse to post or delete any Content for any or no reason, including, without limitation, Content that in the sole judgment of our Brand violates these Terms or our Privacy Policy.

We assume no responsibility for monitoring the Site for inappropriate Content or conduct. If at any time we choose, in our sole discretion, to monitor the Site, we nonetheless assume no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.

You are solely responsible for your use of the Site, the Content that you post on or through the Site, and any material or information that you transmit to other Members and for your interactions with other Users.

Protection of Intellectual Property Rights

We respect the intellectual property of others, and require that our Users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. We reserve the right to terminate the Membership of anyone we suspect to be an infringer.

If you believe that your intellectual property has been copied and/or provided to us in a way that constitutes copyright infringement, you may contact us at consumerrelations@barefootwine.com.

Reliance

Certain legislation, including the Australian Consumer Law, may confer rights and remedies on you which cannot be excluded, restricted or modified ("Non-excludable Rights"). Nothing in these Terms is intended to exclude, restrict or modify your Non-excludable Rights.

However, to the full extent permitted by law, E. & J. Gallo Winery makes no representations or warranties, express or implied, whatsoever as to any matter. In particular, this Site and all information contained within it is provided "as is" and on an "as available" basis. We do not guarantee that the Site will be uninterrupted or error free or that this Site or its server are free of computer viruses, bugs or other harmful components.

Furthermore, to the extent permitted by law, neither we nor any party involved in creating, producing or delivering this Site accept any liability for the accuracy, timeliness or completeness of the information contained on this Site or any responsibility for any errors or omissions in the content on this Site whether or not we are aware of such errors or omissions, nor does it accept any liability for any direct, incidental, consequential, indirect, special, punitive or exemplary damages or any loss of business, interest, goodwill, revenue or profit, or loss or corruption of data arising out of your access to, or use of, or inability to use or access this Site, whether arising in tort or contract.

Personal Information

E. & J. Gallo Winery collects personal information about users of this Site, including age, birthdate, address, email address, phone number, Facebook account information and geographic location. This information is collected for a wide range of purposes including to conduct and follow up on transactions, improve our website, services and product, invite and help you to participate in a range of events and to send promotional communications or offers. We may disclose your personal information to its related companies or consultants and to any other third parties for such purposes and otherwise where it is required or permitted under any applicable law. If you do not provide the requested information, we may not be able to provide you with access to the Site. To obtain further information about what personal information we hold about you and to access your information or to make a complaint about how the information has been handed, please contact us on the contact details below.

Intellectual Property Rights

Unless otherwise noted, all materials on this Site are the intellectual property of E. & J. Gallo Winery and/or its affiliates or third parties. Other than viewing the content on this Site, you do not have any rights to use the content. You agree that you will not use this Site for any unlawful purpose. You will not violate or attempt to violate the security of this Site.

Limitations of Our Liability

IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS. IF THE WARRANTY EXCLUSIONS OR LIMITATIONS OF LIABILITY SET FORTH IN THIS USE AGREEMENT ARE FOR ANY REASON HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).

Our Service Providers

We may use one or more third party service providers to design and/or operate parts of the Site. In such cases, each such service provider is also included in the terms "we" and "us" for purposes of the Terms.

Indemnification

You agree to indemnify and hold E. & J. Gallo Winery, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, cost, expense, claim, or demand, including without limitation, reasonable attorneys' fees, due or relating to or arising out of your use of the Site in violation of the Terms and/or arising from a breach of the Terms and/or any breach of your representations and warranties set forth in the Terms and/or arising out of or relating to any Content that you post.

We are based in the State of California, in the United States of America.. If you access the Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

Miscellaneous

The Terms will be construed, and their performance enforced, under the laws of Australia. Any dispute relating to the Terms or the Site may be litigated only in a court having jurisdiction and venue in your Australian State of residence.. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms. We may assign the Terms, in whole or in part, to a related entity or to a third party or to any third parties in connection with the sale, assignment, or other transfer of the Site or sale, assignment, merger, reorganization, or other transfer of any of our brands or companies.

Arbitration

Generally

BY USING OUR SITE, YOU AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN US. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) claims that arose before these or any prior Terms were adopted; (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of these Terms of Use.

This arbitration provision shall survive the termination of these Terms of Use.

Opt Out

Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE WHEN YOU FIRST ACCEPT THESE TERMS (the "Opt Out Deadline"). You may opt out of these arbitration procedures by calling 800-750-8828 or emailing consumerrelations@barefootwine.com. to request the opt out form. Any opt out received after the Opt Out Deadline will not be valid and you must pursue any claim in arbitration.

Notice of Disputes

For all disputes and claims, whether pursued in court or arbitration, you must first give us an opportunity to resolve your dispute or claim by sending a written Notice of Dispute (the "Notice") to us at the following address: Office for Dispute Resolution, E. & J. Gallo Winery , 1541 Cummins Drive, Modesto, CA 95358. The Notice must (a) describe the nature and basis of the dispute or claim and (b) set forth the specific relief sought (a "Demand"). If our Brand and you do not reach an agreement to resolve the dispute or claim within 30 days after Notice is received, you or our Brand may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.

The arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms of Use and will be administered by the AAA. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by the terms of these Terms of Use. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the Terms, including but not limited to, any claim that all or any part of the Terms are void or voidable.

The payment of all AAA filing, administration and arbitrator fees for any arbitration initiated hereunder will be governed by the AAA Rules; provided, however that for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys' fees and costs. Except for claims under $75,000 determined to be frivolous, we agree not to seek an award of attorneys' fees in such arbitration proceedings even if an award is otherwise available under applicable law.

Unless we agree otherwise, any arbitration hearings will take place in the county of your billing address.

The Terms are accepted upon your use of the Site or any of its features and is further affirmed upon you becoming a Member (if applicable). The Terms constitute the entire agreement between you and our Brand regarding the use of Site and its services and features. Our failure to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. The section titles in the Terms are for convenience only and have no legal or contractual effect. The Terms operate to the fullest extent permissible by law. If any provision of the Terms is unlawful, void or unenforceable, that provision is deemed severable from the Terms and does not affect the validity and enforceability of any remaining provisions.

Contact us

You may contact E. & J. Gallo Winery by emailing consumerrelations@barefootwine.com. You can contact E. & J. Gallo Winery by writing to the following postal address:

Consumer Information Center

1541 Cummins Drive
Modesto, CA 95358.

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