Terms of Service

Last Updated: October 25, 2022

Benolo is a gifting platform that makes gifting wine simple and easy. These Terms of Service (the “Terms”) constitute a legally binding agreement made between you and AAE Uncorked Inc. d/b/a Benolo (“Benolo” or “we” or “us” or “our”), concerning your access to and use of the Services, as defined below. Supplemental terms and conditions, addendums, or documents related to the Services are hereby expressly incorporated into these Terms by reference.

PLEASE READ THESE TERMS CAREFULLY, AS THEY AFFECT YOUR LEGAL RIGHTS. REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH BENOLO ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE USER REGISTRATION PROCESS AND ALSO BY CONTINUING TO USE THE SERVICES. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT BENOLO MAY MAKE TO THE TERMS IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE SERVICES.

Modification

These Terms may be amended or modified at any time by posting the revised Terms on getbenolo.com and/or providing a copy to you via email. Revised Terms shall be effective as of the time they are posted, but will not apply retroactively. Your continued use of the Services after the posting of the revised Terms constitutes your acceptance of the revised Terms. If you do not agree with amendments or modifications to these Terms, your sole and exclusive remedy is to terminate your use of the Services and close your account. Unless material changes are made to the arbitration provisions herein, you agree that modification of these Terms do not create a renewed opportunity to opt out of arbitration (if applicable).

License to Use the Services

Subject to your compliance with these Terms, Benolo grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Benolo online gifting platform (the “Platform”) and website at getbenolo.com (collectively, the “Services”). This license is personal to you and may not be assigned or sublicensed to anyone else. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.

Age Requirement

You must be at least 21 years old to use the Services. Gift recipients must be at least 21 years old.

Sale of Alcoholic Beverages

Benolo does not sell wine or any other alcoholic beverages. All gift redemptions are received and fulfilled by third-party licensed alcohol vendors (the “Vendors”), based on the recipient’s geographic location. The selection of wines may be limited or not available in certain locations due to local law or other restrictions.

Benolo is not a common carrier and does not deliver orders placed on the Platform. The Vendors will package and ship all orders placed on the Platform, without the supervision of Benolo. Benolo cannot guarantee delivery times and is not liable for the actions, omissions, or products of Vendors or any delivery driver or service. The Vendors may employ or use third-party delivery service providers.

User Accounts

In order to use the Services you must create a user account. Your user account is personal to you and may not be shared. You must provide your name, valid email address, and company name to create a user account on the Platform.

Organizational Accounts

After creating a user account you may create Organizational Accounts to invite members of your organization to use the Services and to create funding sources for your team. Once your Organizational Account has been established you will be able to add and remove organizational users, make payments to add credits to your funding sources, create gifting campaigns, and view transactions that have occurred in your organization.

Campaigns and Credits

To make a gift, you must create a campaign and fully fund the campaign. All campaigns must have an expiration date after which no gifts may be redeemed. Payments made to fund campaigns are non-refundable. If a gift is not redeemed by the end of the campaign, you will receive credits that can be used toward a new campaign. Any credits returned to your account must be redeemed within twelve (12) months from the date the credits are added to your account. Any credits that have not been redeemed within that time period will expire.

Organizational Accounts may create campaigns or establish funding sources that can be used to fund a campaign by organization users. Credits purchased for a funding source must be redeemed within twelve (12) months of the expiration of the relevant campaign. Any credits that have not been redeemed within twelve (12) months of the expiration of a campaign will expire.

Fees and Taxes

You may be required to pay certain fees (including payment processing fees, licensing fees, and/or membership fees) and sales tax when funding a campaign or purchasing credits for a funding source. Any applicable fees and taxes will be disclosed to you before you complete your purchase.

Redemption

Gift recipients will receive an email that includes a custom message (text, audio or video) from the user making the gift, which will allow them to claim the gift. The recipient must click the embedded link and select the gift of their choosing. All gifts must be redeemed prior to the expiration of the campaign. A recipient may decline a gift, in which case the gifting user will receive credits that can be used for a future campaign or that will be returned to a funding source. Gifts may not be redeemed for cash.

User Content

Users may include a custom message in a campaign or gift of wine (hereinafter “User Content”).

You agree that you will not send, submit, or transmit in connection with the Services, or cause to be sent, submitted, or transmitted, any material that:

• you do not have the right to post, including without limitation any proprietary material of any third party protected by intellectual property laws (or by rights of privacy or publicity);
• advocates or could reasonably serve to encourage, either directly or indirectly, any illegal or immoral activity, or discusses an intent to commit an illegal act or violate any law, rule, or regulation;
• is vulgar, obscene, pornographic, incendiary, or indecent;
• threatens or abuses others;
• is libelous or defamatory towards others;
• is racist, abusive, harassing, threatening or offensive; or
• impersonates or misrepresents your connection to any other entity or person or otherwise manipulates or forges headers or identifiers to disguise the origin of content.

You are solely responsible for the content of your submissions. You acknowledge and agree that Benolo does not assume or have any liability for any User Content with respect to custom messages. You acknowledge that Benolo may or may not pre-screen custom message created and/or uploaded to the Services, yet Benolo shall have the right, but not the obligation, in its sole discretion, to pre-screen, refuse, remove, or delete any User Content that violates this Agreement or is otherwise objectionable as determined by the Services in its sole discretion.

The Website reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, custom message with or without notice. You agree that the Website will not be liable to you or any third party for any modification, suspension, or discontinuance of the custom messages.

WHILE THE WEBSITE EXPLICITLY PROHIBITS THE ABOVE CONDUCT, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE EXPOSED TO SUCH CONDUCT AND CONTENT, AND THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK, AND THAT BENOLO SHALL HAVE NO LIABILITY OF ANY KIND FOR SUCH CONDUCT.

YOU UNDERSTAND AND AGREE THAT IF YOUR USE OF CUSTOM MESSAGES VIOLATES ANY OF THE ABOVE CODES OF CONDUCT, BENOLO CAN SUSPEND AND/OR TERMINATE YOUR USE OF THE WEBSITE IMMEDIATELY WITHOUT PRIOR NOTICE AND WITHOUT ANY RIGHT OF REFUND.

Age Verification

All shipments of wine will require signature upon delivery. A gift recipient may be required to provide verification that they are at least 21 years old.

Campaigns

Users and organizations can use campaigns to send multiple gifts at once to an unlimited number of recipients. In order to send a campaign a user or organization must have a credit balance equal to or exceeding the total value of the gifts to be sent prior to the activation of the campaign.

Refunds

All sales of campaigns and credits are final. There are no refunds on campaigns or for the purchase of credits.

Returns

Damaged gifts may be eligible for return and re-shipment. If you receive a damaged gift, you must contact us within five (5) days of receiving shipment. All gift returns will be processed by the Vendor that fulfilled and processed the shipment. If you are otherwise dissatisfied with your gift in any way, please contact [email protected].

Intellectual Property

You acknowledge that the Services contain software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. The Benolo name, logos and affiliated properties, designs and marks are the exclusive property of AAE Uncorked Inc., whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Nothing contained in the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or other intellectual property without our express prior written consent.

Any other trademarks appearing in the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the Services. All rights not expressly granted in these Terms are reserved.

General Prohibitions

You agree not to do any of the following:

• Use, display, mirror or frame the Services or any individual element within the Services, Benolo’s name, any Benolo trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Benolo’s express written consent;
• Access, tamper with, or use non-public areas of the Services;
• Attempt to probe, scan or test the vulnerability of any Benolo system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Benolo to protect the Services or Platform;
• Use the Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
• “Frame” or “mirror” any part of the Services, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other website for any purpose;
• Modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Platform or any software used on or for the Platform;
• Rent, lease, lend, sell, redistribute, license or sublicense the Platform or access to any portion of the Platform;
• Transfer or sell your User account, password and/or identification to any other party
• Violate any applicable law or regulation.

Account Termination

Benolo may, in its sole discretion, suspend, disable, or delete your account (or any part thereof), for any lawful reason, including if Benolo determines that you have violated the above prohibition or these Terms. If Benolo deletes your account, you may not re-register for or use the Services under any other user name or profile. Benolo may block your access to the Services to prevent re-⁠registration.

Upon termination of these Terms all licenses granted by Benolo will terminate. The following sections survive termination: Privacy, User Content, Indemnification, No Warranties, Limitation of Liability, Intellectual Property, Disputes, Class Action Waiver, Governing Law and all general provisions. If you cancel your account for any reason, you will lose access to all campaigns, funding sources, credits and/or features provided through the Services.

No Warranties

THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BENOLO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, BENOLO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM AND SERVICES OR PRODUCTS REQUESTED THROUGH THE USE OF THE PLATFORM AND SERVICES, OR THAT THE PLATFORM AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

BENOLO DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF ANY THIRD PARTY. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM OR SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

BENOLO DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD-PARTY PROVIDERS INCLUDING VENDORS, DELIVERY SERVICES, AND DELIVERY DRIVERS. THIRD PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF BENOLO.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW: (I) BENOLO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, ECONOMIC OR PURE ECONOMIC LOSSES, GOODWILL, USE, DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, INABILITY TO USE THE SERVICES OR OTHER INTANGIBLE LOSSES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE; AND (II) BENOLO’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS, IN THE AGGREGATE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO BENOLO OVER THE 12 MONTHS PRECEDING THE DATE YOUR FIRST CLAIM(S) AROSE. IF YOU LIVE IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION DOES NOT APPLY TO YOU. TO THE EXTENT THAT ONE OR ANY ASPECT OF BENOLO’S LIMITATIONS SET OUT ABOVE DO NOT APPLY, ALL REMAINING ASPECTS SURVIVE. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BENOLO AND YOU.

Dispute Resolution

If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Claims shall be heard by a single arbitrator. The place of arbitration shall be New York, NY and shall be governed by the laws of the State of New York. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. Arbitrator(s) shall agree to these limits prior to accepting appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

Class Action Waiver

THE PARTIES HERETO AGREE THAT BY ENTERING INTO THIS AGREEMENT, EACH PARTY WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION AGAINST THE OTHER IN A COURT OR IN ARBITRATION. THE PARTIES FURTHER AGREE THAT EACH MAY BRING DISPUTES AGAINST EACH OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both parties agree otherwise, arbitration claims may not be joined or consolidated in the arbitration proceeding. In no event shall the Arbitrator have authority to preside over any form of representative or class proceeding or to issue any relief that applies to any person or entity other than users individually. If this Class Action Waiver is found to be invalid or unenforceable in whole or in part, then the entirety of this section (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver.

Governing Law and Jurisdiction

These Terms shall be governed by the laws of the State of New York, without regard to principles of conflicts of law.

Notices

You consent to receive all communications including notices, agreements, disclosures, or other information from Benolo electronically. For notices to Benolo, write to the following addresses:

AAE Uncorked Inc.
99 Wall St. Suite 736
New York, NY 10005

Nothing in these Terms or otherwise limits Benolo’s right to object to subpoenas, claims, or other demands.

Entire Agreement

These Terms and the Privacy Policy, incorporated by reference herein, comprise the entire understanding and agreement between you and Benolo as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of these Terms), and every nature between and among you and Benolo.

Force Majeure

Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, pandemics, acts of terror, strikes or other labour problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

Successors; Assignment; No Third Party Beneficiaries

These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without Benolo’s prior written consent. Benolo may assign its rights, obligations and/or these Terms at any time at its sole discretion without notice to you.

Interpretation; Severability; Waiver; Remedies

Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by Benolo in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Benolo. Benolo’s rights and remedies hereunder are cumulative and not exclusive.