By the Bar Terms of Service

Version 1 - 21Feb09

1. Your Agreement with Wine by the Bar

1.1. Your use of Wine by the Bar's service (the "Service") is governed by this agreement (the "Terms"). "By the Bar", or "Wine by the Bar", means By the Bar of NC, LLC, located at 313 Nantucket Drive, Cary, NC 27513, United States, and its subsidiaries or affiliates involved in providing the Service.

1.2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that By the Bar will treat your use of the Service as acceptance of the Terms from that point onwards.

1.3. You may not use the Service if you are a person barred from receiving the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 21, as the Service is not intended for anyone under 21.

2. Your Account and Use of the Service

2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify By the Bar immediately.

2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.

2.3. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interfaces that are provided by By the Bar, unless you have been specifically allowed to do so in a separate agreement with By the Bar, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).

3. Service Policies and Privacy

3.1. You agree to comply with the By the Bar Content Policies in Section 5 (the "Program Policies") which is incorporated herein which may be updated from time to time.

3.2. The Service shall be subject to the privacy policy for the Service included in these Terms and available at http://www.winebythebar.com/terms (or such URL as By the Bar may provide). You agree to the use of your data in accordance with By the Bar's privacy policies.

4. Fees for Use of the Service

4.1. Subject to Section 12 of the Terms, the Service is provided to you without charge for up to 500MB of disk storage, 10GB incoming bandwidth per day, 10GB outgoing bandwidth per day, 200 million megacycles of CPU per day and 2,000 emails per day. These quotas will be know as the "Fee Threshold". By the Bar reserves the right to change this quota at its discretion.

4.2. By the Bar may change its fees and payment policies for the Service with ninety (90) days prior notice. Changes to the fees or payment policies will be posted at http://www.winebythebar.com/terms (or such other URL By the Bar may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason and any collection expenses (including attorneys' fees) incurred by By the Bar will be included in the amount owed.

5. Content in the Service and Take Down Obligations

5.1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content."

5.2. By the Bar reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Program Policies, including pursuant to a take down request from By the Bar. In the event that you elect not to comply with a request from By the Bar to take down certain Content, By the Bar reserves the right to directly take down such Content or to disable your account.

5.3. In the event that you become aware of any violation of the Program Policies by an end user of the Application, you shall immediately terminate such end user's account on your Application. By the Bar reserves the right to terminate end user By the Bar accounts or disable the Application in response to a violation or suspected violation of the Program Policies.

5.4. You agree that you are solely responsible for (and that By the Bar has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which By the Bar may suffer) by doing so.

5.5. You agree that By the Bar has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up any Content.

5.6. To uphold the quality and reputation of By the Bar products and services, your use of the Service is subject to these program policies. If you are found to be in violation of our policies at any time, as determined by By the Bar in its sole discretion, we may warn you or suspend or terminate your account. Please note that we may change our program policies at any time, and pursuant to these Terms of Service (the "Terms"), it is your responsibility to keep up-to-date with and adhere to the policies posted here. All capitalized terms used herein have the meanings stated in the Terms, unless stated otherwise.

5.7. Prohibited Content - The Content uploaded to By the Bar by you through the Service shall not contain any of the following types of content:

+ Content that infringes a third party's rights (e.g., copyright) according to applicable law;

+ Pornographic, obscene or excessively profane content;

+ Hate-related or violent content;

+ Content advocating racial or ethnic intolerance;

+ Content intended to advocate or advance computer hacking or cracking

+ Gambling;

+ Other illegal activity, including without limitation illegal export of controlled substances or illegal software;

+ Drug paraphernalia;

+ Phishing;

+ Malicious content;

+ Pages comprised primarily of advertising;

+ Other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights.

5.8. Prohibited Actions - In addition to (and/or as some examples of) the violations described in the Terms, you may not:

+ Generate or facilitate unsolicited commercial email ("spam"). Such activity includes, but is not limited to:

+ sending email in violation of the CAN-SPAM Act or any other applicable anti-spam law;

+ imitating or impersonating another person or his, her or its email address, or creating false accounts for the purpose of sending spam;

+ data mining any web property (including By the Bar) to find email addresses or other user account information;

+ Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content

+ Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;

+ Conduct or forward pyramid schemes and the like;

+ Transmit content that may be harmful to minors;

+ Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any email;

+ Illegally transmit another's intellectual property or other proprietary information without such owner's or licensor's permission;

+ Use the Service to violate the legal rights (such as rights of privacy and publicity) of others;

+ Promote or encourage illegal activity;

+ Interfere with other users' enjoyment of the Service;

+ Sell, trade, resell or otherwise exploit the Service for any unauthorized commercial purpose;

+ Modify, adapt, translate, or reverse engineer any portion of the Service;

+ Remove any copyright, trademark or other proprietary rights notices contained in or on the Service;

+ Reformat or frame any portion of the web pages that are part of the Service's Administration Console;

+ Use the Service in connection with illegal peer-to-peer file sharing;

+ Display any content on the Service (including but not limited to the customizable login page) that contains any pornographic, hate-related or violent content or contain any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; or

+ Modify the By the Bar logo or any other By the Bar Brand Features.

+ Use the Service, or any interfaces provided with the Service, to access any By the Bar product or service in a manner that violates the terms of service or other terms and conditions for use of such By the Bar product or service.

6. Proprietary Rights

6.1. You acknowledge and agree that By the Bar (or By the Bar's licensors) own all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

6.2. Unless you have agreed otherwise in writing with By the Bar, nothing in the Terms gives you a right to use any of By the Bar's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.

6.3. Except as provided in Section 8, By the Bar acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with By the Bar, you agree that you are responsible for protecting and enforcing those rights and that By the Bar has no obligation to do so on your behalf.

7. License from By the Bar and Restrictions

7.1. By the Bar gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by By the Bar as part of the Service as provided to you by By the Bar (referred to as the "By the Bar Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by By the Bar, in the manner permitted by the Terms.

7.2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the By the Bar App Engine Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by By the Bar, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (c) use the Service to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.

7.3. Unless By the Bar has given you specific written permission to do so, you may not assign (or grant a sub-license of) your rights to use the By the Bar Software, grant a security interest in or over your rights to use the By the Bar Software, or otherwise transfer any part of your rights to use the Software.

8. License from You

8.1. By the Bar claims no ownership or control over any Content. You retain copyright and any other rights you already hold in the Content, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Service you give By the Bar a perpetual, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling By the Bar to provide you with the Service in accordance with its privacy policy. Furthermore, by contributing through use of the Service, you give By the Bar a perpetual, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling By the Bar to provide you with the Service in accordance with its privacy policy.

8.2. You agree that By the Bar, in its sole discretion, may use your Contributions in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.

8.3. You acknowledge and agree that your Contributions, including without limitation, postings in any form through the Service and user forums, will be accessible by other By the Bar users.

8.4. By posting Contributions, you are granting to By the Bar and its licensees a worldwide, royalty-free, perpetual, non-exclusive and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Contributions by you (in whole or in part) and/or to incorporate it in other works in any form, media or technology now or hereafter known.

8.5. You represent and warrant that you have the right to transmit to and authorize By the Bar to use the Contributions and all information, materials, data or records that you provide to By the Bar in connection with the Service as set forth in here.

9. Software Updates

9.1. The Software which you use may automatically download and install updates from time to time from By the Bar. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit By the Bar to deliver these to you) as part of your use of the Service.

10. Modification and Termination of the Service

10.1. By the Bar is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which By the Bar provides may change from time to time without prior notice to you.

10.2. You may discontinue your use of the Service at any time and for any reason. Reasons for terminating your use of the Service are, but not limited to, (A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms) or (B) By the Bar is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful). Further, By the Bar may terminate your use of the Service for any reason without written notice.

10.3. If By the Bar suspends or terminates your use of the Service (or you voluntarily discontinue your use of the Service), you will not have access to, or the ability to, export your Content. Notwithstanding the foregoing, the rights set forth in this Section 10.3 are subject to your payment of any outstanding fees due upon termination for your use of the Service.

10.5. Upon any termination of the Service, these Terms will also terminate, but Section 17.7 shall continue to be effective after these Terms are terminated. The license from you in Section 8 for Content shall continue to apply.

11. EXCLUSION OF WARRANTIES

11.1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT WINE BY THE BAR'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

11.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."

11.3. WINE BY THE BAR, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WInE BY THE BAR, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.

12. LIMITATION OF LIABILITY

12.1. SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT WINE BY THE BAR, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHERF INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

12.2. THE LIMITATIONS ON WINE BY THE BAR'S LIABILITY TO YOU IN PARAGRAPH 11.1 ABOVE SHALL APPLY WHETHER OR NOT WINE BY THE BAR HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

13. Indemnification

13.1. You agree to hold harmless and indemnify By the Bar, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "By the Bar and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, By the Bar will provide you with written notice of such claim, suit or action.

14. Policies Regarding Copyright and Trademarks

14.1. It is By the Bar's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content at any time and for any reason.

15. Other Content

15.1. The Services may include hyperlinks to other web sites or content or resources or email content. By the Bar may have no control over any web sites or resources which are provided by companies or persons other than By the Bar.

15.2. You acknowledge and agree that By the Bar is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

15.3. You acknowledge and agree that By the Bar is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

16. Changes to the Terms

16.1. By the Bar may make changes to the Terms from time to time. When these changes are made, By the Bar will make a new copy of the Terms available at http://www.winebythebar.com/terms.

16.2. You understand and agree that if you use the Service after the date on which the Terms have changed, By the Bar will treat your use as acceptance of the updated Terms.

17. General Legal Terms

17.1. The Terms constitute the whole legal agreement between you and By the Bar and govern your use of the Service (but excluding any services which By the Bar may provide to you under a separate written agreement), and completely replace any prior agreements between you and By the Bar in relation to the Service.

17.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

17.3. If By the Bar provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

17.4. You agree that By the Bar may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.

17.5. You agree that if By the Bar does not exercise or enforce any legal right or remedy which is contained in the Terms (or which By the Bar has the benefit of under any applicable law), this will not be taken to be a formal waiver of By the Bar's rights and that those rights or remedies will still be available to By the Bar.

17.6. By the Bar shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

17.7. The Terms, and your relationship with By the Bar under the Terms, shall be governed by the laws of the State of North Carolina without regard to its conflict of laws provisions. You and By the Bar agree to submit to the exclusive jurisdiction of the courts located within the county of Wake, North Carolina to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that By the Bar shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

18. Privacy

18.1. Information Sharing with Third Parties - It is By the Bar's intention not to share Personally Identifiable Information with Third Parties without your consent.

18.2. By the Bar uses general and aggregate information in its business. However, it is our intention not to disclose anything that could be used to identify those individuals.

18.3. Business Transfers - By the Bar may sell, transfer or otherwise share some or all of its assets, including your personally identifiable information, in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.