FORESTER LIQUORS, LLC
TERMS AND CONDITIONS OF USE
Last revised on: January 30, 2017
These terms and conditions of use (“Terms”) contain the complete terms and conditions applicable to your (“you” or “your”) access to and use of the services and features available on Forester Liquors, LLC dba Craft Alley’s (“Company”, “we”, “us” or “our”) website and domains, including at www.craftalley.co and all of its webpages, subdomains, subparts of those websites (collectively, “Site”), downloadable applications (“App”), or any software that we provide to you that allows you to access either our Site or App (collectively, the “Services”), and any information, text, graphics, photos or other materials posted or submitted on or through our Services (“Content”).
THE SERVICES ARE INTENDED SOLELY FOR USERS WHO ARE 21 YEARS OF AGE OR OLDER, AND ANY REGISTRATION, USE, OR ACCESS TO THE SERVICES BY ANYONE UNDER 21 IS STRICTLY PROHIBITED AND IN VIOLATION OF THESE TERMS.
BY USING THE SERVICES, YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE AT LEAST 21 YEARS OF AGE. IMPORTANTLY, THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 11.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS.
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT THESE TERMS ARE SUPPORTED BY REASONABLE AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY ACKNOWLEDGED. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT SUCH CONSIDERATION INCLUDES, WITHOUT LIMITATION, YOUR USE OF THE SERVICES AND RECEIPT OR USE OF DATA, CONTENT, PRODUCTS, SERVICES, OR ANY COMBINATION THEREOF THROUGH OUR SERVICES.
1. Our Services
1.1 Services. Our Services enable you to search for alcoholic beverages and other products (“Products”) and place orders. Although we stock some Products, we cannot stock every Product that we sell through our Services. We rely upon a network of independent vendors, breweries, retailers, manufacturers, and other licensed parties (collectively, “Vendors”) to offer all of the Products we list on our Services. Company makes every effort to ensure that the information on our Services is accurate and current, but we provide our Services, Products, and all Product information on an "as is" basis. We make no guarantees and expressly disclaim all representations or warranties of any kind with respect to our Services or any Products you find thereby. Company reserves the right to refuse or cancel any orders or offers made through our Services for any reason in our sole discretion, including without limitation if Products state an incorrect price, rebate or discount, or if they contain any other incorrect information or typographical errors. If your order is cancelled we will contact you to explain why and refund any money you have paid us for that order.
1.2 Order Process. If we accept your order request, your credit or debit card will be charged for the amount of your purchase plus any additional fees necessary to fulfill your order. Once the charge is authorized, we will prepare your order for delivery, either by packaging your order ourselves or working with the appropriate Vendors. Your order request, pick-up, shipment or delivery may be declined for any reason by us or Vendor, its employee or agents, or the shipping or delivery company used by us or Vendor or that shipping or delivery company’s employees or agents. If we are unable to deliver your order as a result of your absence or incorrect information, you may be charged a non-refundable restocking fee of twenty dollars ($20.00) ("Restocking Fee").
1.3 Delivery. Company reserves the right to ship Products however it deems most convenient. Company may rely upon, but is not limited to, using its employees, Vendors, or third parties (“Shippers”) to deliver Products. The individual picking-up the order or accepting the order shipment or delivery must provide a valid form of photo identification proving that he or she is at least 21 years old, be legally capable and willing to sign for the order at pick up time, and not be visibly intoxicated (“Qualified Recipient”). Shippers may catalog the identification card for Company’s or Vendor’s record through scan, photo, or other means. It is solely the responsibility of Shippers, its employees or agents, to verify such proof of identification. Shippers will not deliver Products without age verification and will not leave the Products unattended. If a Qualified Recipient is not available at the time of delivery, or if Shippers or its employees or agent, in its sole discretion, determines that the delivering the Products would be illegal, unsafe, or inappropriate, Shippers will not deliver the Product and you will automatically be charged a Restocking Fee. .
YOU AGREE THAT YOU MAY NOT PROVIDE COMPANY OR A LICENSED RETAILER ANY INFORMATION OF, OR USE THE SERVICES TO PURCHASE OR PICK-UP FOR OR SEND A DELIVERY OR SHIPMENT TO, ANY INDIVIDUAL UNDER 21 YEARS OF AGE.
1.4 Shipping Delay or Failure. In the case of inclement weather or other events beyond our control that interfere with Shippers’ ability to deliver the Products safely or satisfactorily, Shippers will attempt to deliver Products as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your order is not feasible, we will cancel delivery for the period so affected and issue you a refund of the purchase price for that delivery.
1.5 Quality Assurance. You are responsible for inspecting all Products you receive from Shippers for any damage or other issues upon delivery. Additionally, you are solely responsible for determining the freshness of the Products you receive. In the unlikely event that you have any reason to believe that any Product in your delivery is not suitable for consumption, contact us at firstname.lastname@example.org and discard the item. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all Products upon delivery and follow the U.S. Department of Agriculture’s instructions on refrigeration and food safety, which can be found here. We also recommend that all Products be consumed or discarded within fourteen (14) days of receipt. In cases where you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
2.1 Terms of Sale. We offer different purchasing options through our Services. Options include subscription plans (each, “Subscription”) and one-time purchases for our Services. For more information about our Subscriptions, please visit the Pricing page on our website and our FAQs. Note that we do not currently deliver to every location, so please visit our Delivery page to verify that we deliver to your area.
2.2 Continuous Subscription. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) COMPANY (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THESE TERMS.
2.3 Cancellation. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY EMAILING US AT CANCELLATIONS@CRAFTALLEY.CO. ANY ORDER IDENTIFIED AS “ORDER PROCESSED” OR “SHIPPED” ON YOUR DELIVERY SCHEDULE PAGE, HAS BEEN PROCESSED AND CANNOT BE CANCELLED. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY ORDER PROCESSED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION OR RESTOCKING FEE. In the event you cancel your Subscription, please note that Company may still send you promotional communications, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
2.4 Promotional Offers; Credits. Company, in its sole discretion, may offer certain promotions and credits from time to time for users, to the extent permissible under applicable laws. Depending upon where you are, you may or may not receive or be eligible to participate in these promotional offers and credits. If we choose to extend a promotion or credit to you, it will be issued by us and not Vendors, unless otherwise specifically stated in the terms and conditions of such promotion or credit. Any such promotions and credits are non-transferrable and may only be used in connection with the Services.
3.1 Account Creation. In order to use certain features of the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form, including but not limited to a valid state driver’s license number, your first and last name, billing address, and shipping address. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by emailing us at email@example.com. Company may suspend or terminate your Account in accordance with Section 10.
3.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
4. Access to the Services
4.1 License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Services solely for your own personal, noncommercial use.
4.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content or Products displayed on the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
4.3 Modification to the Services or Products. Company reserves the right, at any time, to modify, suspend, or discontinue the Services or Products (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
4.4 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Services.
4.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Company or its Vendors. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 4.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
5. User Content
5.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Services (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 5.3). You may not represent or imply to others that your User Content is in any way provided, sponsored, or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
5.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Services; or (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
5.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 10, and/or reporting you to law enforcement authorities.
5.5 Feedback. If you provide Company with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
6.1 Indemnification. By entering into these Terms and using any portion of the Services, you agree that you shall defend, indemnify and hold Company, its licensors, Vendors, Shippers, and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation, (b) your violation of any rights of any third party, (c) your use or misuse of the Services, (d) your negligence or willful misconduct, or (e) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. Third-Party Links & Ads; Other Users
7.1 Third-Party Links & Ads. The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
7.2 Other Users. Each user of our Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Services users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of our Services, we are under no obligation to become involved.
7.3 Release. You hereby release and forever discharge the Company, its Vendors and Shippers (and all parties’ officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Services users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY CONTENT, INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SERVICES AND MATERIALS) ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY COMPANY OR ITS AUTHORIZED AGENT OR REPRESENTATIVE WILL BE DEEMED TO CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. COMPANY MAKES NO REPRESENTATION OR WARRANTY AS TO YOUR LEGAL RIGHT TO PICK-UP OR HAVE ALCOHOL BEVERAGES TRANSPORTED TO YOU OR YOUR INTENDED RECIPIENT.
9. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY, ITS VENDORS, OR SHIPPERS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF USE, DATA OR PROFITS OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCTS OR SERVICES, OR FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS OR SERVICES, OR THE PROCESSING, PURCHASE, SALE, TRANSPORTATION, SHIPMENT, DELIVERY OR CONSUMPTION OF ALCOHOLIC BEVERAGES, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICES INITIATED OR COMPLETED BETWEEN YOU AND COMPANY OR VENDORS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF COMPANY OR ITS VENDORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. If, for any reason, a court or arbitral body finds Company liable for damages notwithstanding the foregoing, in no event shall Company’s total liability for all damages exceed the amount paid by you to Company for your use or receipt of the Products through our Services. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
NEITHER COMPANY NOR VENDOR NOR ANY SHIPPER SHALL BE LIABLE FOR ANY DAMAGES TO GOODS CAUSED BY WEATHER CONDITIONS AND OTHER "ACTS OF GOD" DURING TRANSPORTATION. WEATHER CONDITIONS MAY CHANGE AT ANY TIME, SO COMPANY, VENDOR, AND/OR SHIPPER CANNOT ASSUME LIABILITY FOR DAMAGE CAUSED BY CHANGES IN WEATHER DURING TRANSPORTATION. "ACTS OF GOD" INCLUDE, BUT ARE NOT LIMITED TO, UNFORESEEABLE DELAYS OR ACCIDENTS, PUBLIC UNREST, CONFISCATION, AND NATURAL DISASTERS.
YOU AGREE THAT THE ABOVE LIMITATIONS OF LIABILITY TOGETHER WITH THE OTHER PROVISIONS IN THESE TERMS THAT LIMIT LIABILITY ARE ESSENTIAL TERMS OF THESE TERMS AND THAT COMPANY WOULD NOT BE WILLING TO GRANT YOU THE RIGHTS SET FORTH IN THESE TERMS BUT FOR YOUR AGREEMENT TO THE ABOVE LIMITATIONS OF LIABILITY; YOU ARE AGREEING TO THESE LIMITATIONS OF LIABILITY TO INDUCE COMPANY TO GRANT YOU THE RIGHTS SET FORTH IN THESE TERMS.
10. Term and Termination.
10.1 Term & Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 1 through 4.5 and Sections 6 through 11.
11.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Services. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any Products or Services provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: Craft Alley 1455 S Pearl St Denver CO 80211. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Company’s headquarters, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. No claim or action arising from or concerning the Services or otherwise hereunder may be brought later than one (1) year from the date the claim or cause of action arose.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(l) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(m) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(n) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
(o) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver, Colorado, for such purpose.
11.3 Export. The Products and Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
11.4 Disclosures. Company is located at the address in Section 11.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.5Electronic Communications. The communications between you and Company use electronic means, whether you use the Services or send us emails, or whether Company posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
11.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
11.7 Copyright/Trademark Information. Copyright © 2017 Forester Liquors, LLC All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
11.8 Contact Information:
1455 S Pearl Street
Denver, CO 80211