PLEASE NOTE THAT SECTION 10 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER PROVISION. IT AFFECTS HOW DISPUTES BETWEEN YOU AND KOBRAND MAY BE RESOLVED.
1. AGREEMENT TO TERMS
Kobrand maintains the Site for the personal use of individuals who are of the legal age to consume alcoholic beverages under the laws of their jurisdiction of residence. Please exit the Site immediately if you are not of the legal age to consume alcoholic beverages under the laws of your jurisdiction of residence.
You may be required to create an account and specify a password to use certain features on the Site. You agree to provide, maintain and update true, accurate, current, and complete information about yourself as prompted by the registration processes. You may not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password, or other account information.
You are entirely responsible for maintaining the confidentiality of your password and your account. And you are entirely responsible for all activity made by you or anyone that uses your account. You agree to safeguard your password from access by others. If you believe that your account has been compromised, you must immediately contact us via email@example.com. You agree to indemnify and hold harmless Kobrand for losses incurred by Kobrand or another party due to someone else using your account as a result of your failure to use reasonable care to safeguard your password.
3. SITE INTEGRITY
You may not use any computer program tools including, but not limited to, web spiders, bots, indexers, robots, crawlers, harvesters, or any other automatic device, program, algorithm or methodology, or any similar or equivalent manual process (“Tools”) to access, acquire, copy, mirror or monitor any portion of the Site or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any content, to obtain or attempt to obtain materials, documents or information through any means not purposely made available through the Site. Tools that use the Site shall be considered agents of the individual(s) who control or author them. Your use of this Site is restricted. The transmission of any material or data to this Site which is harmful, contains corrupt computer code, contains a virus, could damage, disable, overburden or impair the Site, interferes with another party’s use and enjoyment of the Site, or is otherwise malicious or harmful to Kobrand, or attempts to corrupt the material, images or files of this Site is strictly prohibited.
4. USER SUBMISSIONS
Kobrand does not solicit nor does it wish to receive any confidential, secret or proprietary information or other material from you through the Site, any of its services, by email, or in any other way. Any information or material submitted by you, including User Submissions, will be deemed not to be confidential, secret or proprietary. Further, you agree that User Submissions and any information or materials submitted by you to the Site, whether ideas, creative concepts or other materials, in any format, including, but not limited to, writings, images, illustrations, audio recordings, and video recordings, may be used, reproduced and disclosed by us without restriction for whatever purpose we deem fit and without payment of any sum or acknowledgement of you as their source. You also warrant that any “moral rights” in User Submissions have been irrevocably waived by the appropriate authors. WE SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY YOU AS A RESULT OF USE OR DISCLOSURE OF SUCH MATERIALS BY US TO THE EXTENT PERMITTED BY LAW. This paragraph does not affect any rights you may have under data privacy laws that protect your personal information or similar privacy laws, to the extent that such rights cannot be excluded.
5. ACCEPTABLE USAGE POLICY
We may or may not actively monitor use of User Submissions posted on our Public Forums or otherwise submitted to Kobrand. Similarly, we may or may not exercise editorial control over the content of any Public Forum. As a result, you may be exposed to content on our Public Forums that is inaccurate, fraudulent or deceptive or that you find offensive or objectionable. Your use of Public Forums is at your own risk. However, we reserve the right, but are not obliged, to monitor our Public Forums and to remove or alter any content, which we consider, in our sole discretion, constitutes a misuse of these rules. We may restrict, suspend or terminate your use of the Site where we believe that there has been such a misuse. The following examples constitute a misuse of our Public Forums:
- using the Site for any improper, unlawful or immoral purpose, causing any nuisance by your use of the Site or causing the operation of the Site to be jeopardized or impaired;
- using the Site to create, host or transmit (whether in a Public Forum or otherwise) any defamatory, offensive, or obscene material or engaging in activities which would cause offence to others on grounds of race, religion, creed or sex;
- using the Site to harm, or attempt to harm, minors in any way;
- using the Site to create, host or transmit any material that threatens or encourages bodily harm or the destruction of property or would constitute a criminal offence or give rise to civil liability;
- using the Site to create, host or transmit material which infringes the copyright, trademark, patent, trade secret, privacy, publicity or other intellectual property or proprietary rights of any other party;
- using the Site to create, host or transmit unsolicited advertising material to other users;
- using the Site to create, host or transmit any material that harasses another;
- using the Site to make false, misleading, deceptive or fraudulent offers to sell or buy products, items or services or to send chain letters or pyramid schemes and the like;
- adding, removing or modifying identifying network header information or copyright management information including author names, publication dates or clearance agency names in an effort to deceive or mislead;
- using the Site to access, or to attempt to access, the accounts of others or to penetrate, or attempt to penetrate, our or a third party’s security measures, computer software, hardware, electronic communication system, or telecommunications systems;
- using the Site to collect, or attempt to collect, personal information about third parties without their knowledge or consent or to engage in screen scraping, database scraping or any other activity with the purpose of obtaining lists of users or other data;
- using the Site for any activity which adversely affects the ability of other people or systems to use the services or the internet generally, including, without limitation, flooding and hacking;
- reselling, repurposing or redistributing any services provided by us our contractors or our licensees without our prior written consent; or impersonating any person or entity or using a false name that you are not authorized to use;
- encouraging, condoning or glamorizing under-age drinking, drunk-driving or excessive consumption of alcoholic beverages; or
- disclosing any personally identifiable information about yourself or any other party (e.g. telephone number, geographic address or any other information from which an individual’s identity or contact information can be derived).
This list only serves to provide examples and is not meant to be an exhaustive list of the type of unacceptable uses of the Public Forums that may result in the restriction, suspension or termination of your use of the Public Forums or of our Site. Due to the global nature of the Internet, users hereby agree to comply with all local rules regarding on-line conduct and acceptable content. Users also agree to comply with any applicable rules regarding the export of any data from any country.
You understand that personal and other information (e.g., username, email address, phone number) that you post on or through Public Forums is generally accessible to, and may be collected and used by, others and may result in unsolicited messages or other contact from others. You should not include any personally identifiable information about yourself or any other person in any User Submissions. We reserve the right, but not the obligation, to remove any User Submissions that contain personally identifiable information. We shall not be liable for the use or misuse of any information or data, including personal information, that you post on our Public Forums.
6. COPYRIGHT PROTECTION
If you believe that any User Submission infringes your copyrights, you may request that Kobrand remove the User Submission from the Site (or disable access to that User Submission) by contacting our Designated Agent (identified below) and providing the following information pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”):
- Identification of the copyrighted work that you believe to be infringed. Please describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number, and e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Send this information to us by mail or e-mail to our Designated Agent: J. Katz, 3 World Trade Center, 175 Greenwich Street, 68th Floor, New York, NY 10007 (firstname.lastname@example.org).
Once the Designated Agent receives a notification that meets the requirements set forth above, it is our policy to: (a) review the request; (b) remove or disable access to the infringing User Submission; and (c) notify the provider of the User Submission that we have removed or disabled access to such User Submission.
If you receive a notification of alleged copyright infringement, and believe that the claim is erroneous, you may submit a counter-notification to Kobrand’s Designated Agent within thirty (30) days of the date the User Submission was removed from the website. A counter-notification must be a written communication that includes substantially the following:
- Identification of the material that has been removed or disabled and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number, and e-mail address.
- A statement “under penalty of perjury” that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material.
- A signature or the electronic equivalent of the person submitting the counter-notification.
Upon receipt of a counter-notification in accordance with the above, Kobrand shall promptly provide the complaining party with a copy. The complaining party shall have within ten (10) business days to inform Kobrand that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity on the website. If Kobrand receives such notification within ten (10) business days, Kobrand shall not replace the removed User Submission or cease disabling access to it. If Kobrand does not receive such notification from the complaining party that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity on the website, then Kobrand shall replace the removed User Submission or cease disabling access to it within four (4) business days following the expiration of the ten (10) business day deadline.
In accordance with the DMCA and other applicable law, Kobrand may, in its sole discretion, terminate access to the Site of any user that Kobrand finds to be a repeat infringer. Kobrand reserves the right to define the criteria by which Kobrand will determine that a user is a “repeat infringer.”
If you believe that a user is a repeat infringer, please follow the instructions above to contact Kobrand Designated Agent and provide information sufficient for us to verify that the user has been determined to be in violation of the DMCA repeatedly.
7. KOBRAND TRADEMARKS AND COPYRIGHTS
This Site may contain hyperlinks to third-party websites. Kobrand does not control or endorse these third-party websites or any goods or services sold on those websites. Some of these websites may contain materials that are objectionable, unlawful, or inaccurate. You acknowledge and agree that Kobrand is not responsible or liable for any content or other materials on these third party websites.
9. LINKING THIS SITE
If you would like to link to this Site you may only do so on the basis that you link to, but do not replicate, the home page of this Site, and subject to the following conditions: (1) you do not remove, distort or otherwise alter the size or appearance of the Kobrand Trademarks or the logos of its imported / distributed products; (2) you do not create a frame, table or any other browser or border environment around this Site; (3) you do not in any way imply that Kobrand is endorsing any products or services other than its own and those of its portfolio; (4) you do not misrepresent your relationship with Kobrand nor present any other false information about Kobrand or the contents of its portfolio; (5) you do not otherwise use any Kobrand Trademarks without written permission from Kobrand; (6) you do not link from a website that is not owned by you; and (7) your website does not contain content that is distasteful, offensive or controversial, infringes any intellectual property rights or other rights of any other person or otherwise does not comply with all applicable laws and regulations.
You agree that agree that any dispute or claim arising out of your use of the Site, including any dispute or claim as to the application, enforceability, scope, or interpretation of this agreement to arbitrate, shall be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
Arbitration shall be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the most-current JAMS Streamlined Arbitration Rules & Procedures, and conducted by a single, neutral arbitrator. Arbitration shall take place by phone, unless an in-person hearing is requested by either party. In that case, the hearing shall take place in the county where you reside. To the extent this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply.
Disputes may also be referred to another arbitration organization if you and the Company agree in writing, or to an arbitrator appointed pursuant to Section 5 of the Federal Arbitration Act.
You and Kobrand each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
11. GOVERNING LAW AND SEVERABILITY
The Site and the products offered on the Site (“the Products”) are provided on an “as is” basis. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND PRODUCTS IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, KOBRAND, ITS SHAREHOLDERS, SUBSIDIARIES, AND AFFILIATES (THE “KOBRAND ENTITIES”), AND EACH OF THEIR AGENTS, REPRESENTATIVES AND SERVICE PROVIDERS, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. The Kobrand Entities, their agents, representatives and service providers cannot and do not guarantee or warrant that: (a) the Site will be reliable, accurate, complete, or updated on a timely basis; (b) the Site will be free of human and machine errors, omissions, delays, interruptions or losses, including loss of data; (c) any files available for downloading from the Site will be free of infection by viruses, worms, Trojan horses, or other codes that manifest contaminating or destructive properties; or (d) the functions or services performed on the Site will be uninterrupted or error-free or that defects in the Site will be corrected.
13. LIMITATION OF LIABILITY
THE KOBRAND ENTITIES’, THEIR AGENTS’, REPRESENTATIVES’ AND SERVICE PROVIDERS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH RESPECT TO YOUR USE OF THE SITE IS TO DISCONTINUE YOUR USE OF THE SITE. THE KOBRAND ENTITIES, THEIR AGENTS, REPRESENTATIVES AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SITE OR THE PRODUCTS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE OR THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, LOST OR STOLEN PRODUCTS. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, AND EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE KOBRAND ENTITIES, THEIR AGENTS, REPRESENTATIVES AND SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE KOBRAND ENTITIES’, THEIR AGENTS’, REPRESENTATIVES’ AND SERVICE PROVIDER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Kobrand makes no claim that the Site or any material on the Site is appropriate or may be downloaded outside of the United States. If you access the Site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.