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TERMS & CONDITIONS

WEBSITE AND MOBILE APP TERMS OF USE

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Effective Date: 8/17/2020

Last Revised: 2/12/2024

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Please note there will be a credit card usage fee of two percent (2%) on the total auction purchase price up to the credit card payment limit of USD$15,000, HKD$150,000, or SGD$20,000 for live auctions, and on the total amount charged on internet auctions (except where prohibited by applicable law).

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Acker, Merrall & Condit Co and its affiliates, including, without limitation, Acker Auction, Inc., Acker, Merrall & Condit (Asia) Ltd, Acker U.K. Ltd., Acker Auction DE, LLC and The Wine Workshop LLC (collectively, “Acker”, “we”, “us” or “our”), on and through ackerwines.com (the “Website”) and our mobile application (including any updates or upgrades to the application software and any related documentation) (collectively with the Website, the “Digital Platforms”), advertises, promotes, sells and auctions wine, spirits and other alcoholic beverages, and related products (collectively, “Products”) and provides other features, information, and news related to Products in a variety of media (collectively with Products, the “Products & Services”).

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By accessing and using the Digital Platforms and/or using or purchasing our Products & Services, you are agreeing to be bound by these Website and Mobile App Terms of Use (the “Website and Mobile App Terms of Use” or “Terms”) without modification, limitation, or qualification. Please read them carefully. Please also note that we may, in our sole discretion, modify or revise these Terms at any time by updating the text of this page, and you will be bound by any such modification or revision from that point forward. You should therefore visit this page periodically to review the Terms. Your continued access, use, browsing or purchasing via our Digital Platforms following the posting of changes to the Terms means that you accept those modifications or revisions. We will take appropriate measures to inform you of material changes to the Terms, consistent with the significance of the changes we make, including by email or by notification on our Digital Platforms. If you do not agree with the changes, you should notify us and immediately stop using the Digital Platforms. You can see when these Terms have been last updated by checking the “Last Revised” date displayed on the top of these Terms.

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We often make Products & Services available to you through the Digital Platforms and when we do additional terms and conditions may apply. Such additional terms will be presented to you at the time of digital access to the applicable Products & Services. Those additional terms are hereby incorporated by reference into these Terms and become part of your agreement with us if you use, download or purchase those Products & Services (as applicable). In the event of a conflict between these Terms and those additional terms, the latter will control. For the avoidance of doubt, and merely by way of example, your purchase of non-auction wine, spirits and other alcoholic beverages through the Website will be subject to our Retail Conditions of Sale and your participation in any Acker auction (including by bidding using the Digital Platforms) will be subject to the Conditions of Sale applicable to the relevant auction, found here.

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1. USING OUR WEBSITE

The Digital Platforms allow for browsing and online shopping of and access to our Products & Services (including retail purchases and placing bids at our live and online auctions). They also provide news and valuable information about our Products & Services, including, without limitation, data, articles, publications, videos, products, graphics, photographs, video, sound, audio clips, digital downloads, text, images, icons, coding, scripts, software, pictures, rankings, indexes, sorting, presentations, compilations, and other material (collectively, “Content”). The Content of the Digital Platforms owned and controlled by Acker or by third parties that have licensed their Content to us.

Warning: Our Products & Services relate to the advertisement and promotion, sale and auction of wine, spirits and other alcoholic beverages. By accessing, using, browsing or purchasing Products & Services on the Digital Platforms, you represent that you are at least 21 years of age. You further represent that upon purchasing Products via the Digital Platforms, you will ensure that the shipment and delivery of your purchase is received by a person at least 21 years of age.

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2. LIMITED LICENSE

Subject to the restrictions and limitations set forth in these Terms, we grant you a limited, non-exclusive license to access and use the Digital Platforms, the Acker Software (as hereinafter defined), and Content therein, only for your own personal, internal use, if an individual or other non-principle entity, and, if an agent, only for the purposes of facilitating a transaction for your clients with us. You are permitted to access the Content only through the Digital Platforms. You may download no more than a single copy or print of any the Contents only as necessary for your personal, internal, and non-commercial use, or in the case of agents, to display to your clients solely for purposes of facilitating a transaction with us.

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3. PROHIBITIONS ON USE

Except as explicitly set forth herein, you must obtain our prior written consent for any reproduction of the Content of the Digital Platforms or any portion thereof. The following activities are also expressly prohibited without Acker’s prior written permission:

  • any non-personal or commercial use (other than an agent’s use to facilitate a transaction for your clients with us);

  • use of any robot, spider, other automatic device or manual process to monitor or copy the Digital Platforms or any of the Content;

  • “mirroring” the Digital Platforms or any Content on any other server;

  • modifying, adapting, editing, creating derivative works from, transferring, selling, licensing, renting or otherwise exploiting or making commercial use of the Digital Platforms, the Content, the Acker Software, or any element thereof (including any inventions, algorithms, processes, techniques, source or machine code, data or materials used or incorporated in, implemented by, or available on or through the Digital Platforms);

  • collection or use of Content, including product listings, descriptions or prices, for a supplier of competitive or comparable products;

  • any action that imposes an unreasonable or disproportionately large load on the Digital Platforms or otherwise interferes with their functioning;

  • the input or upload of any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any Acker system, including the Digital Platforms;

  • deleting or altering any copyright, trademark, or other proprietary rights notices from copies of materials from the Digital Platforms;

  • attacking the Digital Platforms via a denial-of-service attack or a distributed denial-of-service attack;

  • exploiting or harming minors (or attempting to do so) in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;

  • procuring the sending of any advertising or promotional material (without our prior written consent), including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; and

  • reverse engineering, decompiling, decrypting, disassembling or converting into human readable form, the Digital Platforms, Content, the Acker Software, or any element thereof (including any inventions, algorithms, processes, techniques, software, source or machine code, data or materials used or incorporated in, implemented by, or available on or through the Digital Platforms).

 

You may not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of Acker, without our prior written consent. You may not use any meta tags or any other “hidden text” utilizing Acker’s name or trademarks without our prior written consent.

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In addition to the use specified herein, the Terms herein apply to any other software (including any updates or upgrades to the software and any related documentation) that we make available to you from time to time for your use in connection with our Products & Services (the “Acker Software”) and terms of the software license agreement accompanying such Acker Software (the “License Agreement”), and is further conditioned on your agreement to be bound by the terms of the License Agreement.

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4. PRIVACY

We consider the privacy and protection of our customers’ personal data and personal information to be paramount. Our Data Privacy Policy provides further information regarding our practices and policy in relation to personal information. Unless otherwise explicitly stated herein, any non-personal information or material sent to Acker will be deemed NOT to be confidential. By sending Acker any non-personal information or material, you grant Acker an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute such materials or information, and you also agree that Acker is free to use any ideas, concepts, know-how or techniques that you send us for any purpose. However, Acker will not release your name or otherwise publicize the fact that you submitted materials or other information to us unless: (a) you grant us permission to do so, or (b) we are authorized or required to do so by law or in conjunction with our Data Privacy Policy.

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5. YOUR ACCOUNT

To shop, place orders, place bids at our live or online auctions, or otherwise use the Products & Services on our Digital Platforms, you may be required to open an online account and/or provide certain personalized information to us (collectively, “User Information”). You agree that you are solely responsible for the accuracy and content of your User Information, and you agree to keep it up to date. It is your sole responsibility to maintain the confidentiality of your account, password, digital signature, and User Information, and for restricting access to your computer and other mobile devices. You are hereby advised to ensure that minors, children, and persons under the age of 21 do not use your account and User Information to purchase our Products & Services or otherwise use any of our Digital Platforms’ functionality related to Products. You hereby agree to accept full responsibility for all activities that occur under your account or password.

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6. CHILDREN’S ONLINE PRIVACY PROTECTION

We will not knowingly collect personally identifiable information from any person that is actually known to us to be a child under the age of 18. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE DIGITAL PLATFORMS AT ANY TIME OR IN ANY MANNER.

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7. INTELLECTUAL PROPERTY

As between you and Acker, Acker solely and exclusively owns all right title and interest in and to the Digital Platforms, the Content, the Acker Software, and all elements thereof, including all any inventions, algorithms, processes, techniques, software, source or machine code, data, and materials used or incorporated in, implemented by, or available on or through the Digital Platforms, the look, feel and design of the Digital Platforms, the Acker Software, and the Content, compilations of the Content, code, data and materials in the Digital Platforms, and all copyrights, trademark rights, patent rights, database rights, trade secrets, moral rights (including rights of authorship, attribution and subsequent modification) and other intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) in the Digital Platform, the Content, or the Acker Software, any of the foregoing. Your use of the Digital Platforms, the Acker Software, or the Content does not grant to you any right, title or interest in any element thereof, and Acker (and/or our applicable licensors and partners) owns and retains all right, title and interest (including all intellectual property and proprietary rights) therein and thereto, throughout the World.

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(a) Copyright Notice

The Digital Platforms, the Content, the Acker Software, and all elements thereof, including all any algorithms, processes, techniques, software, source or machine code, data, and materials used or incorporated in, implemented by, or available on or through the Digital Platforms, the look, feel and design of the Digital Platforms and the Content, compilations of the Content, code, data and materials in the Digital Platforms, and all works of authorship therein, are the exclusive property of Acker and are protected by United States and international copyright laws, Copyright 2022 Acker, Merrall & Condit Company, All Rights Reserved.

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(b) Trademark Notice

All of our marks on our Digital Platforms are registered trademarks of Acker in the United States and other jurisdictions. Ackerwines.com and its related graphics, logos, page headers, button icons, scripts, and product and service names included in or made available through the Products & Services, are trademarks or trade dress of Acker in the United States and other jurisdictions. Acker’s trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Acker. All other trademarks not owned by Acker that appear on the Digital Platforms are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Acker.

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(c) Copyright & Trademark Complaints Notice

We respect the intellectual property rights of others and require all users of our Digital Platforms and Products & Services to respect ours as well. If you believe that your work has been copied in a way that constitutes copyright or other intellectual property infringement, please report your alleged infringement as soon as possible, to terms@ackerwines.com.

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8. DISCLAIMERS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE DIGITIAL PLATFORMS, THE ACKER SOFTWARE, AND THE CONTENT IS AT YOUR SOLE RISK, AND THE DIGITAL PLATFORMS AND ALL SERVICES, CONTENT (INCLUDING ACKER SOFTWARE OR ANY OTHER SOFTWARE), FUNCTIONS, MATERIALS AND PRODUCTS & SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE DIGITAL PLATFORMS (COLLECTIVELY, “MATERIALS”) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THEIR OPERATION OR THE INFORMATION CONTAINED THEREIN, UNLESS OTHERWISE SPECIFIED IN WRITING.

TO THE FULLEST EXTENT PERMITTED BY LAW, ACKER AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES, AGENTS, ASSIGNS, CONTENT PROVIDERS, SERVICE PROVDERS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “ACKER RELATED PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ACKER RELATED PARTIES DO NOT WARRANT THAT THE MATERIALS, THE ACKER RELATED PARTIES’ SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM THE ACKER RELATED PARTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

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9. LIMITATION OF LIABILITY

IF YOU OR ANY THIRD PARTY ARE DISSATISFIED WITH ANY PORTION OF THE DIGITAL PLATFORMS, THE CONTENT, THE ACKER SOFTWARE, OR WITH ANY PROVISION OF THE LICENSE AGREEMENT OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE DIGITAL PLATFORMS, THE CONTENT, THE ACKER SOFTWARE, AND PRODUCTS & SERVICES. UNDER NO CIRCUMSTANCES SHALL ANY OF THE ACKER-RELATED PARTIES BE LIABLE TO ANY USER OR ANY THIRD PARTY ON ACCOUNT OF THAT USER’S USE OF THE DIGITAL PLATFORMS. IN NO EVENT SHALL ANY OF THE ACKER RELATED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE DIGITAL PLATFORMS, THE DELAY OR INABILITY TO USE THE DIGITAL PLATFORMS, THE PROVISION OF OR FAILURE TO PROVIDE THE MATERIALS, OR THE CONTENT CONTAINED WITHIN THE MATERIALS, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND EVEN IF THE ACKER RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE ACKER RELATED PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING FROM THESE TERMS OR YOUR USE OF THE MATERIALS EXCEED, IN THE AGGREGATE, FIFTY UNITED STATES DOLLARS ($50.00) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

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10. NOTICE REGARDING THE ENFORCEABILITY OF CERTAIN DISCLAIMERS AND LIMITATIONS OF LIABILTY

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES AND/OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS PROVIDED FOR HEREIN (INCLUDING IN SECTION 8 AND SECTION 9 ABOVE) MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

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11. PRODUCT DESCRIPTION AND TYPOGRAPHICAL ERRORS

We attempt to be as accurate as possible. However, except for the general product description for each item, Acker makes no representation or warranties that product descriptions contained on the Digital Platforms are accurate, complete, reliable, current, or error-free. Regarding the sale of wine, spirits and other alcoholic beverages, please refer to our Retail Conditions of Sale and relevant auction Conditions of Sale, as applicable, for information about our sale and auction policies.

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12. ORDER ACCEPTANCE POLICY

Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We may not accept credit card payment for orders placed over fifteen thousand United States Dollars ($15,000.00). We may in our sole discretion require additional verification or information before accepting any order.

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13. LINKS

(a) Linking to the Digital Platforms

You agree that if you include a link from any other website to the Digital Platforms, such link shall: (i) not contain information or be as of a kind to portray Acker in a false, misleading, derogatory or otherwise offensive manner; (ii) open in a new browser window; and (iii) link to the full version of an HTML formatted page of this Website (where it is a link to the Website). You are not permitted to link directly to any image or other Content hosted on the Digital Platforms or our Products & Services, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another website. You agree not to download or use images or other Content hosted on the Digital Platforms on another website or platform, for any purpose, including, without limitation, posting such images on another site, except as explicitly set forth herein. You agree not to link from any other website to the Digital Platforms in any manner such that the Digital Platforms, the Content, or any page of the Digital Platforms, is “framed,” surrounded, or obfuscated by any third-party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Digital Platforms or Content be discontinued or removed, and to revoke your right to link to the Digital Platforms or Content from any other platform at any time upon written notice to you. To find out more information about our linking policies, or to seek our permission, you may e-mail terms@ackerwines.com.

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(b) Links to Other Websites

You may be able to link from the Digital Platforms to third party websites or platforms, and third-party websites or platforms may link to the Digital Platforms (“Linked Sites”). You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code, or other materials which may or may not be provided by or through Linked Sites, even if they are owned or operated by Acker. Links to Linked Sites do not constitute an endorsement or sponsorship by us of such websites or the information, content, products, services, advertising, code, or other materials presented on or through such websites. Any reliance on the contents of a third-party website or platform is done at your own risk and you assume all responsibilities and consequences resulting from such reliance. Under no circumstances shall any of the Acker Related Parties be responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you in connection with your use of, or reliance on, any content, goods or services available on any other site. You should direct any concerns to that other site’s administrator or webmaster.

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14. ELECTRONIC COMMUNICATIONS

When you access our Digital Platforms, the Acker Software, or the Content, or use or purchase any of our Products & Services or send e-mails to us, you are communicating with us electronically. In so doing, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Digital Platforms. 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.

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15. INDEMNIFICATION

To the fullest extent permitted by law, you agree to indemnify, defend and hold each of the Acker Related Parties harmless from and against any and all losses, damages, demands, claims, suits, judgments, costs, expenses, or other liability of any kind (including reasonable legal, accounting and expert fees, and expenses) relating to, arising from, or resulting from your use of the Digital Platforms, the Content. the Acker Software, including your violation of law or the rights of any third party thereto, or your actual, threatened or alleged direct or indirect breach of any of these Terms. You further agree to advance each of the Acker Related Parties, upon demand, all costs and expenses (including reasonable legal, accounting and expert fees, and expenses) as they are incurred by such Acker Related Parties (as applicable) in connection with any matter covered by the indemnification provisions of this Section 15.

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16. EXPORT CONTROL OF SOFTWARE AND TECHNICAL DATA

The following applies with respect to Acker Software and other Content of a technical nature that you may obtain from the Digital Platforms (other requirements set forth in these Terms and certain additional terms and conditions may apply with respect to items offered for sale, purchased or sold): The United States controls the export of such intellectual property. You agree to comply with such restrictions and not to export or re-export the Content or the Acker Software to countries or persons prohibited under the export control laws of the United States. By downloading the Content or the Acker Software, you are agreeing that you are not in a country where such export is prohibited and that you are not on the United States Commerce Department’s Table of Denial Orders or the United States Treasury Department’s list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Acker Software and/or the Content.

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17. LOCAL STANDARDS

We do not represent that materials on the Digital Platforms, the Content, or the Acker Software are appropriate for use in all locations. Persons who choose to access the Digital Platforms or Acker Software do so of their own initiative and are responsible for compliance with any applicable local laws.

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18. NO WAIVER

Our failure to require or enforce strict performance by you of any provision of these Terms or to exercise any right under these Terms shall not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provision or right in that or any other instance.

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19. SEVERABILITY

Should any part of these Terms be rendered or declared invalid by a court of competent jurisdiction, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these Terms shall remain in full force and effect.

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20. THIRD PARTY BENEFICIARIES

Nothing in these Terms shall be construed to give any rights to any third parties to enforce the terms hereof, except that each of the Acker Related Parties (other than Acker) shall be an express third-party beneficiary of, and entitled to enforce, the protections and rights bestowed upon such entity or person herein.

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21. GOVERNING LAW AND FORUM SELECTION

These Website and Mobile App Terms of Use (including your and Acker’s respective rights and obligations hereunder and your use of the Digital Platforms) shall be governed by the laws of the State of New York without regard to the conflicts of laws principles thereof. For the benefit of Acker, by using the Digital Platforms and/or Acker Software you consent and agree to the exclusive jurisdiction of the state courts of the State of New York located in New York County in connection with any legal claim or action relating to, arising from, or in connection with these Terms (including your and Acker’s respective rights and obligations hereunder and your use of the Digital Platforms or Acker Software) and consent to personal jurisdiction in such courts. You waive, to the maximum extent permitted by law, any objection to the laying of venue in any such court and any claim that such court would be an inconvenient forum for any action covered by this Section 21. You agree that Acker shall retain the right to bring legal proceedings in any court other than the state courts of the State of New York located in New York County

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22. JURY TRIAL AND CLASS ACTION WAIVERS

YOU AND ACKER EACH IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING FROM, RELATING TO, OR CONCERNING THESE WEBSITE AND MOBILE APP TERMS OF USE, INCLUDING THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND YOUR USE OF THE DIGITAL PLATFORMS OR THE ACKER SOFTWARE.

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YOU UNDERSTAND AND AGREE THAT ANY LEGAL ACTION OR PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND ACKER SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ACTION. THIS CLASS ACTION WAIVER IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.

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23. FURTHER INQUIRIES

Please feel free to direct any questions to us about these Terms, the Digital Platforms, the Acker Software, the Content, and our Products & Services, or any other issues, via e-mail at terms@ackerwines.com.

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