In this Agreement, “Palaterra” and “we” mean Palaterra Tastings Platform, LLC., and “User” and “you” mean any user of the Services. This Agreement incorporates Palaterra’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Palaterra Policies”). Notwithstanding the foregoing, Suppliers (as that term is defined herein) are not Users under this Agreement; Suppliers’ use of the Platform shall be governed in whole by separate agreement executed by and between Supplier and Palaterra.
By accessing or using the Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services.
Palaterra may update or revise this Agreement (including any Palaterra Polices) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Palaterra, any use of the Services is subject to the version of this Agreement in effect at the time of use.
The Palaterra Tastings Platform enables tasting companies and agencies (“Tasting Companies”) promoting wine, beer, and spirits tasting events (“Tasting Events”) at retail stores or other locations to coordinate with independent contractors (“Tasting Professionals”) who staff such events. On the Platform, Tasting Companies and Tasting Professionals can, among other things, identify each other, make arrangements to buy and sell independent contractor services, track sales performance, customer feedback, and product information, share supplier, distributor, and retail store information, and collect, store, and share other information relating to Tasting Events. By using the Services, User agrees to receive communications from other Users and Palaterra by email. If a Tasting Company and a Tasting Professional agree on terms for independent contractor services, a service contract (“Service Contract”) is formed directly between such Tasting Company and Tasting Professional, subject to the provisions in this Agreement. When a User enters a Service Contract, the User may use the Platform to engage, communicate, and coordinate with other Users. However, all invoicing and payments between Tasting Companies and Tasting Professionals are handled outside the Platform, and you acknowledge and agree that Palaterra has no liability regarding such invoicing and payments. The Platform also enables suppliers of wine, beer, and spirits products (“Suppliers”) to coordinate with Tasting Companies and Tasting Professionals regarding Tasting Events. On the Platform, Suppliers can, among other things, track customer feedback and product information, monitor and manage the performance of Tasting Companies and Tasting Professionals, and obtain detailed reporting regarding sales and related data. If a Tasting Company and a Supplier agree on terms relating to Tasting Events, a Service Contract is formed directly between such Tasting Company and Supplier, subject to the provisions in this Agreement.
You acknowledge and agree that any Service Contract to which you are a party does not and does not purport to expand Palaterra’s obligations or restrict Palaterra’s rights under this Agreement. You further acknowledge and agree that any other contractual provisions accepted by both the Tasting Company and the Tasting Professional do not, and do not purport to, expand Palaterra’s obligations or restrict Palaterra’s rights under this Agreement. You acknowledge and agree that Palaterra’s is not a party to any Service Contracts, and that the formation of a Service Contract between a Tasting Company and a Tasting Professional will not, under any circumstance, create an employment or other service relationship between Palaterra and the Tasting Professional.
Unless otherwise agreed to in a writing signed by both Tasting Company and Tasting Professional, the default terms and conditions of the Service Contract that a Tasting Professional enters directly with a Tasting Company when the Tasting Professional agrees to provide Tasting Professional services to the Tasting Company are as set forth in any applicable Service Contract. Tasting Company and Tasting Professional may agree between them on any additional or different terms for their Service Contract as long as such terms do not affect the rights or responsibilities of Palaterra or violate any Palaterra Policies. Palaterra is not a party to any Service Contract by or between Users, except as a third-party beneficiary as described further below.
Tasting Company and Tasting Professional appoint Palaterra as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, Palaterra hereunder. Tasting Company and Tasting Professional further agree that Palaterra has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
Tasting Professional will perform its obligations under any Service Contract in a professional and workmanlike manner. The manner and means of performing Tasting Professional’s obligations under any Service Contract will be determined and controlled by Tasting Professional.
Tasting Company will perform its obligations under any agreement with a Supplier involving use of the Platform in a professional and workmanlike manner.
Tasting Company assumes all liability for determining whether Tasting Professionals are independent contractors or employees and engaging them accordingly; Palaterra disclaims any liability for such determination. This Agreement does not create a partnership or agency relationship between Tasting Company and Tasting Professional. Tasting Professional does not have authority to enter into written or oral (whether implied or express) contracts on behalf of Palaterra. For Service Contracts classified as independent contractor relationships, Tasting Company may not require an exclusive relationship between Tasting Company and Tasting Professional. A Tasting Professional classified as an independent contractor is free at all times to provide services to persons or businesses other than Tasting Company, including any competitor of Tasting Company.
Palaterra is not a party to the dealings between Tasting Company and Tasting Professional, including posts, proposals, screening selection, contracting, and performance of Tasting Professional services. Palaterra does not introduce Tasting Professionals to Tasting Companies or help Tasting Professionals find assignments. Palaterra merely makes the Platform available to enable Tasting Professionals to identify and determine the suitability of Tasting Companies for themselves and to enable Tasting Companies to identify and determine the suitability of Tasting Professionals for themselves. Palaterra does not, in any way, supervise, direct, or control Tasting Professional or Tasting Professional’s work. Palaterra does not set Tasting Professional’s work hours, work schedules, or location of work, nor is Palaterra involved in determining if the Tasting Professional’s fees will be set at an hourly or fixed rate for a Service Contract. Palaterra will not provide Tasting Professional with training or any equipment, labor, or materials needed for a particular Service Contract. Palaterra does not provide the premises at which the Tasting Professional will perform the work. Palaterra makes no representations about, and does not guarantee the quality, safety, or legality of, the Tasting Professional services; the truth or accuracy of Tasting Professional’s listings on the Platform; the qualifications, background, or identities of Users; the ability of Tasting Professionals to deliver the Tasting Professional services; the ability of Tasting Companies to pay for the Tasting Professional services; or that a Tasting Company or Tasting Professional can or will actually complete a transaction.
Palaterra does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Tasting Company or Tasting Professional, each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Tasting Professional’s performance, and Tasting Company’s acceptance, of Tasting Professional services.
This Agreement and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and Palaterra, except and solely to the extent expressly stated in this Agreement.
You expressly acknowledge, agree, and understand that: (a) the Platform is merely a venue where Users may act as Tasting Companies and Tasting Professionals; (b) Palaterra is not a party to any Service Contracts between Tasting Companies and Tasting Professionals; (c) you are not an employee of Palaterra, and Palaterra does not, in any way, supervise, direct, or control the Tasting Professional or Tasting Professional services; (d) Palaterra will not have any liability or obligations under or related to Service Contracts or any acts or omissions by you or other Users; (e) Palaterra has no control over Tasting Professionals or the Tasting Professional services offered or rendered by Tasting Professionals; and (f) Palaterra makes no representations as to the reliability, capability, or qualifications of any Tasting Professional or the quality, security, or legality of any Tasting Professional Services, and Palaterra disclaims any and all liability relating thereto.
Palaterra is not required to and may not verify any feedback or information given to us by Tasting Professionals or Tasting Companies, nor does Palaterra perform background checks on Tasting Professionals or Tasting Companies.
You hereby acknowledge and agree that Palaterra may provide information on the Platform about a Tasting Professional or Tasting Company, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on data that Tasting Professionals or Tasting Companies voluntarily submit to Palaterra and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Palaterra; Palaterra provides such information solely for the convenience of Users.
Palaterra will serve as a disinterested pass-through entity for all payments from Suppliers to Tasting Companies, and Palaterra accepts no liability related thereto. Palaterra will forward such payments to applicable Tasting Companies promptly after receiving payments from Suppliers. Payments to Tasting Companies under this Section 9 will be calculated based on the amounts set forth in the Platform. Users acknowledge and agree that Palaterra has no obligation to make any payments to Tasting Companies unless and until Palaterra receives applicable payments from Suppliers. Users further acknowledge and agree that Palaterra has no obligation to make any payments to Tasting Professionals. All payments to Tasting Professionals are the sole responsibility of Tasting Companies. In the event that a dispute arises regarding payments from Suppliers to Tasting Companies or from Tasting Companies to Tasting Professionals, Users’ sole recourse is to seek redress directly from the applicable Tasting Company or Supplier.
All amounts payable under this Agreement are exclusive of taxes and similar assessments. User is responsible for all income, sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by User hereunder, other than any taxes imposed on Palaterra’s income.
Palaterra reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Platform. Palaterra will have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse will be to cease using the Services. Continued use of the Services following any such changes will indicate your acknowledgment of such changes and satisfaction with all the Services.
The features, information, and materials provided and depicted through Platform and the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Platform and Services (collectively, the “Palaterra Content”) are provided to User by Palaterra or its partners or licensors solely to support User’s permitted use of the Services. The Palaterra Content may be modified from time to time by Palaterra in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the Palaterra Content by User will constitute a material breach of this Agreement. Palaterra and its partners or licensors retain all rights in the Services and Palaterra Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Palaterra or any third party is granted under this Agreement.
The Services and Palaterra Content are offered solely for the purposes described in this Agreement. Any and all other uses are prohibited. Palaterra expressly reserves all its rights and remedies under applicable state and federal laws. Palaterra reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Palaterra Content, except as expressly authorized by Palaterra; (2) take any action that imposes or may impose (in Palaterra’s sole determination) an unreasonable or a disproportionately large load on the Services or Palaterra’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or Palaterra Content to a third party; (5) use any portion of the Services or Palaterra Content to provide, or incorporate any portion of the Services or Palaterra Content into, any product or service provided to a third party; (6) modify any Services or Palaterra Content or create any derivative product from any of the foregoing; (7) remove or obscure any proprietary or other notices contained in the Services or Palaterra Content; (8) use the Services or Palaterra Content for any illegal purpose; or (9) publicly disseminate information regarding the performance of the Services or Palaterra Content or access or use the Services or Palaterra Content for competitive analysis or benchmarking purposes.
Palaterra may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Palaterra may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Palaterra Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account, and you may lose access to information stored on the Platform. You agree that Palaterra will not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are free to discontinue use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Palaterra will have no liability whatsoever.
The Services may permit you to: (a) submit comments, product reviews, and sales performance information; send emails and other communications; and (b) submit suggestions, ideas, comments, questions, or other information for publication and distribution to retail stores, suppliers, distributors, and other third parties (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of privacy, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. Palaterra reserves the right (but has no obligation) to monitor, remove, or edit User Content in Palaterra’s sole discretion, including if User Content violates this Agreement (including any Palaterra Policies), but you acknowledge that Palaterra may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Palaterra a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media. Palaterra takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third party.
You represent and warrant that: (a) you own or otherwise control all of the rights to any User Content submitted by you; (b) all User Content submitted by you is accurate; (c) exploitation of such User Content by Palaterra and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity); (d) if you are a Tasting Company, (i) you are duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of your incorporation or other organization, (ii) you have the full right, power and authority to enter into and perform your obligations and grant the rights, licenses, consents and authorizations you grant or are required to grant under this Agreement, (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (e) you own or otherwise have and will have the necessary rights and consents in and relating to the User Data so that, as received by Palaterra and processed in accordance with this Agreement, such User Data do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law. “User Data” means information, data and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
You will indemnify, defend, and hold harmless Palaterra and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Platform and the Services by you or your agents, including any payment obligations incurred through use of the Platform; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Tasting Professional as an independent contractor; the classification of Palaterra as an employer or joint employer of Tasting Professional; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you or your agents; (d) User Data, including any processing of User Data by or on behalf of Palaterra in accordance with this Agreement; (e) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of User, including Palaterra’s compliance with any specifications or directions provided by or on behalf of User to the extent prepared without any contribution by Palaterra; (f) allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (g) negligence or more culpable act or omission (including recklessness or willful misconduct) by User, or any third party on behalf of User, in connection with this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PALATERRA BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY USE OF THE SERVICES, THE PALATERRA CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE TASTING EVENT MANAGEMENT SERVICES), (4) YOUR VISIT TO ANY RETAIL STORE OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY RETAIL STORE IN CONNECTION WITH THE SERVICES, OR (5) YOUR RELATIONSHIP WITH ANY TASTING COMPANY OR TASTING PROFESSIONAL. PALATERRA IS NOT AN AGENT OF ANY TASTING COMPANY, TASTING PROFESSIONAL, RETAIL STORE, SUPPLIER, OR DISTRIBUTOR.
You and Palaterra understand and agree that the disclaimers, exclusions, and limitations in this Section 17 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Palaterra would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
THE SERVICES, ALL PALATERRA CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. PALATERRA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. PALATERRA DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT PALATERRA WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. PALATERRA WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PALATERRA.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
The Services do not replace the need for User to maintain regular data backups or redundant data archives. PALATERRA HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
The Services may contain hypertext links to websites operated by parties other than Palaterra. Such hypertext links are provided for User’s reference only, and Palaterra does not control such websites and is not responsible for their content. Palaterra’s inclusion of any hypertext links to such websites does not imply any endorsement of the material on such websites or any association with their operators. Palaterra assumes no liability whatsoever for any such third-party websites or any content, features, products, or services made available through such third-party websites.
You are solely responsible for your interactions with other Users, retail stores, suppliers, and distributors, and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your interactions with such parties. You hereby release Palaterra and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from Claims of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of any Tasting Professional’s performance.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement will remain in full force and effect and such provision or portion thereof will be deemed omitted.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by Palaterra.
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, will neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
Tasting Companies, Tasting Professionals, and Suppliers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, service contracts, liability waivers, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand Palaterra’s obligations or restrict Palaterra’s rights under this Agreement.
Except as otherwise expressly set forth herein, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its actual attorneys’ fees and court costs from the non-prevailing party.