Website and Mobile App Terms of Use

Effective Date: 12/8/2020

Last Revised: 12/8/2020

Acker, Merrall & Condit Company and its affiliates, including, without limitation, Acker Storage

LLC, Acker Auction DE, LLC, Acker Auction, Inc., Acker, Merrall & Condit (Asia) Ltd, Acker London

Ltd., and The Wine Workshop LLC (collectively, “Acker”, “we”, “us” or “our”), on and through

ackerwines.com and ackerstorage.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 and allows clients

to store wine, spirits and other alcoholic beverages in our Delaware storage facility and view

their accounts relating to such storage (collectively, “Products”) and provides other features,

information, and news related to Products in a variety of media (collectively with Products, the

“Products & Services”).

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.

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, your use of the Acker storage facility is subject to your consent to our

Storage Agreement, found here.

1. USING OUR WEBSITE.

The Digital Platforms allow for browsing and placing bids at our live auctions and reviewing

your storage account and consenting to our storage agreement. They also provide news and

valuable information about our auctions and storage opportunities, including, without

limitation, data, articles, publications, videos, products, graphics, photographs, video, sound,

audio clips, digital downloads, text, images, icons, coding, scripts, software, pictures and other

material (collectively, “Content” or “Contents”). The Contents of the Digital Platforms are

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 and storage 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.

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 for your own personal

internal use. You are permitted to download no more than single copies or prints of the

Contents for your personal and non-commercial use, or in the case of dealers, to display to your

clients solely for purposes of facilitating a transaction with us.

3. PROHIBITIONS ON USE.

You must obtain our prior written consent for any other reproduction of the Contents

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;

• use of any robot, spider, other automatic device or manual process to monitor or copy

the Digital Platforms or any of the Contents;

• “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 or

any element thereof (including any Content, software code, data or materials used in or

available on the Digital Platforms);

• collection or use of 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 or any element thereof (including any Content, software,

code, data or materials used in or available on 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.

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.

4. PRIVACY.

We consider the privacy and protection of our customers’ personal data and personal

information to be paramount. Our Privacy Policy (for US residents, found here; and for

European Economic Area and other non-US residents, found here), provides further

information regarding our practices and policies in relation to personal data and 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; (b)

we first notify you that the materials or other information you submit to a particular part of a

site will be published or otherwise used with your name on it; or (c) we are authorized or

required to do so by law.

5. YOUR ACCOUNT.

To shop, place orders, place bids at our live or online auctions, arrange for storage of your wine,

spirits and other alcoholic beverages, or otherwise use the Products & Services on our Digital

Platforms, you will 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 Platform's functionality related to Products. You hereby agree

to accept full responsibility for all activities that occur under your account or password.

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 16. IF YOU ARE UNDER 16 YEARS OF AGE,

PLEASE DO NOT USE OR ACCESS THE DIGITAL PLATFORMS AT ANY TIME OR IN ANY MANNER.

7. INTELLECTUAL PROPERTY.

As between you and Acker, Acker solely and exclusively owns all right title and interest in and to

the Digital Platforms and all elements thereof, including all the Content, software, code, data,

and materials used therein or available thereon, the look, feel and design of the Digital

Platforms, the compilation of the Content, code, data and materials in the Digital Platform, 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 any of

the foregoing. Your use of the Digital Platforms 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.

(a) Copyright Notice.

All Acker Software and the compilation of all Content on the Digital Platform is the exclusive

property of Acker and is protected by United States and international copyright laws. All Rights

Reserved.

(b) Trademark Notice.

All marks on our Digital Platforms are registered trademarks of Acker in the United States and

other jurisdictions. Ackerwines.com and ackerauctionde.com and their 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 Platform are the property of their

respective owners, who may or may not be affiliated with, connected to, or sponsored by

Acker.

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 [email protected].

8. DISCLAIMERS.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE DIGITIAL

PLATFORMS 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.

9. LIMITATION OF LIABILITY.

IF YOU OR ANY THIRD PARTY ARE DISSATISFIED WITH ANY PORTION OF THE DIGITAL

PLATFORMS, OR WITH ANY PROVISION OF THE LICENSE AGREEMENT OR THESE TERMS, YOUR

SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE DIGITAL PLATFORMS 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 ACTIONARISING 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,.

10. NOTICE REGARDING 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.

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. As

relates to the auction sale of wine, please refer to our Live Auction Conditions of Sale ("US")for

information about our sale and auction policies.

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 in our sole discretion require additional verification or information before accepting

any order.

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 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 hosted on the

Digital Platforms on another website or platform, for any purpose, including, without limitation,

posting such images on another site. You agree not to link from any other website to the Digital

Platforms in any manner such that the Digital Platforms, or any page of either 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 be discontinued or removed, and to revoke your right to link to the Digital Platforms

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 [email protected].

(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.

14. ELECTRONIC COMMUNICATIONS.

When you access our Digital Platforms, to participate in and purchase any lot(s) in our auctions

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.

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 Contents (including Acker Software) of the Digital Platforms, 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.

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 (including

Acker Software) to countries or persons prohibited under the export control laws of the United

States. By downloading the Content (including 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 other

Content.

17. LOCAL STANDARDS.

We do not represent that materials on the Digital Platforms are appropriate for use in all

locations. Persons who choose to access the Digital Platforms do so of their own initiative and

are responsible for compliance with any applicable local laws.

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.

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.

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.

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 Delaware without regard to the conflicts of laws principles thereof. For the benefit

of Acker, by using the Digital Platforms you consent and agree to the exclusive jurisdiction of

the state courts of the State of Delaware located in New Castle 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)

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 Delaware located in New Castle County.

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.

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.

23. FURTHER INQUIRIES.

Please feel free to direct any questions to us about these Terms, the Digital Platforms and our

Products & Services, or any other issues, via e-mail at [email protected].