Welcome and thank you for visiting www.speakeasyco.com (the “Site”). Speakeasy Co. (“Speakeasy” or “we” or “us” or “our”) is an online platform that specializes in empowering alcohol brands. These Terms and Conditions (“Terms and Conditions”) constitute a legally binding agreement and governs access to and use, by users (“you” or “your”), of the Site and of other retailer websites, social media pages, accounts, and mobile applications owned by or licensed to us (collectively, the “Sites”), any order you place through the Sites and, as applicable, your use of the Products you purchase. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING OUR SITES OR PURCHASING ANY SERVICES (AS DEFINED BELOW).
By using the Sites, including, without limitation, by participating in the Services (as defined in Section 2), you hereby agree to these Terms and Conditions, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms and Conditions apply to all users of the site, including without limitation, customers.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SITES, YOU SHALL NOT PLACE AN ORDER, AND YOU SHALL NOT USE ANY PRODUCTS SOLD VIA THE SITES.
We reserve the right to update, change or replace any part of these Terms and Conditions. Your continued use of or access to the Sites following the posting of any changes constitutes acceptance of those changes.
IF YOU SIGN UP FOR A SUBSCRIPTION PROGRAM (AS DEFINED IN SECTION 7), YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT SPEAKEASY’S THEN-CURRENT NON-PROMOTIONAL RATE FOR SUCH SERVICES INDEFINITELY UNTIL AND UNLESS YOU OR SPEAKEASY CANCELS YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 7.
PLEASE MAKE SURE YOU HAVE CAREFULLY READ AND UNDERSTAND THE “ARBITRATION AND WAIVER OF CLASS ACTIONS” PROVISION SET FORTH IN SECTION 21 OF THESE TERMS OF SERVICE, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ACCESSING OR USING OUR WEBSITE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THE ARBITRATION AND WAIVER OF CLASS ACTIONS PROVISION SET FORTH BELOW.
SECTION 1. MINIMUM AGE REQUIREMENT
The Sites are intended for use by adults aged 21 or older and if you use the Sites, you represent and warrant that:
(a) you are at least twenty-one (21) years of age;
(b) the recipient of any alcoholic beverage purchase you may make is at least 21 years of age;
(c) all registration information you submit to Speakeasy is truthful and accurate;
(d) you will maintain the accuracy of such information; and
(e) your use of the Sites and purchase of Services does not violate any applicable law or regulation.
In no event shall you use the Sites nor the Services, nor make a purchase or purchase a gift for someone else if you are under the age of 21, nor may you do any of the foregoing activities for the benefit, or on behalf, of any person under the age of 21. We may refuse to register any person, or service any order at any time, in our sole discretion.
In accordance with these minimum age requirements, you hereby represent that you are legally entitled to take possession of the alcoholic beverages in the quantities ordered, and you are of legal purchase age under applicable laws. See Section 4 regarding age verification requirements at the time of delivery.
SECTION 2. SALE OF ALCOHOLIC BEVERAGES
Our role in the transactions contemplated by these Terms and Conditions is that of a marketing and service provider that enables you, the customer, to purchase alcohol and related products from Licensed Retailers via the Sites (“Services), and to participate in the Services and/or any other product offers offered on the Sites. The sale and delivery of orders are executed and fulfilled by licensed third-party retailers that hold valid licenses issued by state (or other applicable jurisdiction) alcohol beverage agencies allowing for the legal sale of alcohol ("Licensed Retailers”). You acknowledge that you are purchasing alcoholic beverages from a Retailer licensed in the jurisdiction in which it is licensed, and not from Speakeasy. Thus, all orders of alcohol and related products you place through the use of the Sites are processed and fulfilled by such Licensed Retailers, as the actual sellers of the Products. Any purchase you make through the use of the Sites from the Licensed Retailers must be for personal consumption only and not for resale. In the unlikely event that a particular product is unavailable at time of shipping, the Licensed Retailer may substitute a product of similar style and of equal or greater value in your shipment.
SECTION 3. ACCOUNT REGISTRATION
You agree to notify Speakeasy immediately of any unauthorized use of your Account or any other breach of security and to provide properly documented evidence as requested by Speakeasy. You acknowledge and agree that you may never use another customer's Account without their prior approval, and you may not allow anyone else to use your Account at any time. You agree that Speakeasy will not be liable for any loss you may incur as a result of someone else using your password or Account, either with or without your knowledge, and you further agree that you will be liable for losses incurred by Speakeasy or another party due to someone else using your Account or password. If you create an Account, you agree to provide Speakeasy current, complete, true and accurate information, and you also agree to review and update your Account as and when necessary to maintain the most current PII.
SPEAKEASY RESERVES THE RIGHT TO TERMINATE, SUSPEND, MODIFY OR DELETE YOUR ACCOUNT AND/OR ACCESS TO THE SITE AND/OR THE SERVICES AT ANY TIME, FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU, INCLUDING BUT NOT LIMITED TO A VIOLATION OF THE TERMS AND CONDITIONS. SPEAKEASY ALSO RESERVES THE RIGHT TO CHANGE OR DISCONTINUE ANY SERVICE OR FEATURE PROVIDED BY SPEAKEASY, INCLUDING, WITHOUT LIMITATION, THE SITE AND THE SERVICES, AT ANY TIME AND WITHOUT NOTICE. YOU AGREE THAT SPEAKEASY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SUCH TERMINATION, SUSPENSION, CHANGE OR DISCONTINUANCE.
SECTION 4. ORDERS, SHIPPING, AND DELIVERY
If you are an adult over the age of 21, you may make an offer to purchase alcoholic beverages or associated non-alcoholic merchandise (the “Products”) using the Sites from the Licensed Retailers. Prices displayed on the Sites are not controlled by Speakeasy and are subject to change without notice at any time. Licensed Retailers may choose to accept or reject any offer to purchase the Products due to lack of availability, inability to verify your age, or any other reason. If your offer to purchase the Products is declined in full or in part for any reason, you will receive a refund for any portions of your order that are declined by the Licensed Retailer.
You are solely responsible for picking up or arranging for shipping or delivery of your alcohol beverages. You may direct Speakeasy and/or the Licensed Retailer to act as your agent to arrange shipping or delivery of the purchased Product. You are fully responsible for ensuring that the purchase, transportation, shipping and delivery complies with local, state and federal laws. You are solely responsible for obtaining any required permits, authorizations, or approvals to purchase, ship and/or deliver the Product and are responsible for paying any required fees or costs. The Licensed Retailer will only ship your Products at your request and direction. Shipping and handling fees are NOT included with your order. Shipping dates and/or arrival times given are only estimates. Refunds are at the sole discretion of the retailer.
All deliveries must be signed for by an individual who is capable of proving that he or she is 21 years of age or older by providing a valid form of identification at the time of delivery. If there is no individual 21 years of age or older to accept the delivery, the delivery will not be able to be completed at that time. After three failed delivery attempts, the package will be returned to the Licensed Retailer and your credit card will be charged an additional fee in order to receive the package.
We reserve the right to refuse delivery for any reason, including without limitation, the failure to verify age at the time of delivery. Packages cannot and will not be left unattended for any reason.
SECTION 5. TITLE AND OWNERSHIP
Title to, and ownership of, all alcohol passes from a Licensed Retailer to you in the state or other jurisdiction where the Retailer is licensed. You are assuming all responsibility for the shipping of the product. Title and risk of loss or damage for such products will pass to you upon your purchase of the product. Further, you acknowledge and agree that your purchase of alcohol (including, Products) through the Sites is for personal consumption and not for resale.
SECTION 6. PAYMENT
Speakeasy may provide links to other websites. Some of these websites may charge separate fees, which are not included in any subscription or other fees that you may pay to Speakeasy. Speakeasy may also provide access to third-party vendors who provide information, goods, and/or services on the Sites or the Internet. Any separate charges or obligations that you incur in your dealings with these third parties are your responsibility. Speakeasy makes no representation or warranty regarding any information, goods or services provided by any third-party.
We use a third party payment service in lieu of directly processing your credit card information. By submitting your credit card information, you grant Speakeasy Co. and the Licensed Retailer the right to store and process your information with the third party payment service, which may change from time to time; you agree that neither Speakeasy Co. nor the Licensed Retailer will be responsible for any failures of the third party payment service to adequately protect such information. All financial matters regarding your information are subject to the conditions of the third party payment service provider's terms of service. You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.
SECTION 7. SUBSCRIPTION PROGRAM
If you sign up for a periodic subscription, each period, among other things and depending on the specifics of the then-current subscription offering, a Licensed Retailer may ship you a package with the then-current subscription items (e.g., samples of Products, other samples, merchandise, recipes, instructions, and/or other ingredients) (a "Subscription Program"). Each period of your subscription, the selection of Products may change. Accordingly, Speakeasy Co. cannot guarantee that a selection of any such products available in a particular timeframe will be available in any subsequent timeframe.
If you sign up for a Subscription Program, you acknowledge and consent to being charged a recurring payment and you accept responsibility for all recurring charges (including the subscription fee for the subsequent renewal term and any sale or similar taxes that may be imposed on your subscription payment) prior to the cancellation of your membership.
You may cancel your subscription at any time by submitting your request to cancel through the Site. Additionally, we may terminate your membership, without notice, for any reason.
Your subscription will be automatically renewed for successive renewal periods of the same duration as the subscription period originally selected, at the then-current non-promotional rate, for an indefinite time until cancelled by you or us.
The Subscription Program terms herein incorporate the terms of the particular Subscription Program as described in the subscription and checkout pages of the Sites. See the subscription page for a description of the current subscriptions and prices on the Sites. Note that any payment terms presented to you in the process of using or signing up for a paid subscription are deemed part of this Agreement.
SECTION 8. SUBSCRIPTION PROGRAM REFUNDS
Each subscription automatically renews following the end of the previous period’s subscription. To avoid being charged for next period and cancel the next period’s shipment, you must submit your request to cancel through the Site prior to the end of the current subscription period.
All cancellation requests received after the end of the subscription period will apply to the following subscription period. No prorated refund of any portion of the subscription fee paid for the then-current subscription period will be given.
IF YOU DO NOT CANCEL YOUR PERIODIC SUBSCRIPTION PRIOR TO THE END OF THE SUBSCRIPTION PERIOD, YOU WILL BE CHARGED FOR RENEWING THE SUBSCRIPTION. UPON RENEWAL OF YOUR SUBSCRIPTION, IF SPEAKEASY DOES NOT RECEIVE PAYMENT FROM YOUR PAYMENT PROVIDER, (A) YOU AGREE TO PAY ALL AMOUNTS DUE ON YOUR ACCOUNT UPON DEMAND AND (B) YOU AGREE THAT SPEAKEASY MAY EITHER CANCEL OR SUSPEND YOUR SUBSCRIPTION AND CONTINUE TO ATTEMPT TO CHARGE YOUR PAYMENT PROVIDER UNTIL PAYMENT IS RECEIVED (UPON RECEIPT OF PAYMENT, YOUR ACCOUNT WILL BE ACTIVATED AND FOR PURPOSES OF AUTOMATIC RENEWAL, YOUR NEW SUBSCRIPTION COMMITMENT PERIOD WILL BEGIN AS OF THE DAY PAYMENT WAS RECEIVED).
If we terminate your membership or periodic subscription, we will refund prorated fees you paid for the periodic subscription that you have not yet received. You can re-subscribe at any time but we reserve the right to not permit re-subscription where we have previously elected to terminate a subscription by you.
SECTION 9. PROMOTIONAL EMAILS
SECTION 10. PRIVACY AND SECURITY
SECTION 11. NOTICE
SECTION 12. MODIFICATION
You are responsible for regularly reviewing the Terms and Conditions, as the Terms and Conditions may be modified at any time, at our sole discretion, without specific notice to you; provided, however, that (a) any amendment or modification to the provisions applicable to dispute resolution shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification (as the Terms and Conditions in effect at the time of the subject dispute or incurred changes shall govern, as applicable). The latest version of these Terms and Conditions will be posted to the Site, and you should review these Terms and Conditions prior to using the Sites. Any such changes to these Terms and Conditions will become effective immediately upon posting, and your continued use of the Sites and your Account following such notification will be deemed confirmation of your acceptance of such changes. You will not be eligible for any compensation because you cannot use any part of the Sites or because of a failure, suspension or withdrawal of all or part of the Sites. If you are dissatisfied with any modification to the Terms and Conditions, your only remedy is to terminate your use of the Sites, as described in Section 8 (Automatic Subscription Renewal) of these Terms and Conditions
SECTION 13. ACCEPTABLE USE POLICY; PROHIBITED USES
You hereby agree that you are solely responsible for your conduct in connection with your use of the Sites and Services and for any and all acts and omissions that occur under your Account or password. In connection with your use of the Sites and Services, you further agree not to engage in any of the following prohibited activities: (a) create an Account or make any purchase if you are under twenty-one (21) years of age; (b) interfere with or inhibit the use of the Sites or Services by other users; (c) use the Sites or Services for commercial purposes for yourself and/or third parties (for example, by selling, or attempting to sell, your purchases to others, etc.); (d) create an Account using a false identity, alter-ego, by impersonating a third party, or creating any other false account; (e) interfere with, disrupt, or attempt to gain unauthorized access to other Accounts on the Sites or any other computer network (or attempt to gain unauthorized access to the Sites or any of the Services); (f) use the Sites or Services in a manner that could damage, disable, overburden, or impair any Speakeasy server or the network(s) connected to any Speakeasy server; (g) copy, reverse engineer, or attempt to derive the source code of any part of the Sites; (h) post any comment or product review on the Sites or Social Media Pages that is private, libelous, harassing, abusive, obscene, vulgar, sexually explicit, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or is unrelated to our products or services or is clearly false or misleading; (i) disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property of any person; (j) disseminate or transmit viruses, Trojan Horses, or any other malicious code or program; (k) collect or aggregate information regarding other users’ actions relating to the Sites or Services or (l) use the Sites or Services in a manner or engage in any other activity that would violate any of the terms and conditions contained in these Terms and Conditions or any applicable laws. You may not, under any circumstances, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, adapt, translate, transfer, buy, auction, rent, lease, loan, or sell any Content, or other materials appearing in or generated by the Site or Services, or any information obtained from the Site or the Services, without Speakeasy’s prior express written consent.
Violation of the foregoing restrictions will result in immediate termination of your Account, and may potentially subject you to further liability. We may investigate any reported violation of these Terms and Conditions and take any action that we deem appropriate. Such action may include, but is not limited to, issuing warnings, closing your Account, suspending future shipments under your membership or gift purchase, unilaterally removing posted content and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties.
SECTION 14. LIMITED LICENSE; CONTENT
Provided that you comply with these Terms and Conditions, we grant you the limited, revocable, nonexclusive, nonassignable, nonsublicensable right to access and make use of the Sites as a user, through a generally available web browser or mobile device, to view information and to use Speakeasy’s Services.
The Sites, including, without limitation, the Content, are owned by or licensed to us. “Content” includes, without limitation, data, images, drawings, photographs, video, audio, text, graphics, logos, user reviews, and any and all other material and information you see on the Site and/or the Services, whether provided by Speakeasy or by users of the Services, and including software, trademarks, service marks and trade names incorporated in the Sites. ALL USE OF CONTENT IS PROVIDED “AS IS” AND AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT ALL CONTENT IS THE PROPERTY OF SPEAKEASY AND ITS LICENSORS AND THAT YOU HAVE NO INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN ANY CONTENT, REGARDLESS OF WHETHER THAT CONTENT WAS PROVIDED BY SPEAKEASY, YOU, OR ANOTHER USER OF THE SERVICES.
You acknowledge that the Content, Services and Site are protected by copyrights, trademarks, and other proprietary rights owned by Speakeasy, and its licensors, including rights to the selection, coordination, arrangement, and enhancement of such Content, and that these rights are valid and protected in all media existing now or later developed. Except as expressly provided herein, Speakeasy and its licensors do not grant you any express or implied rights, and all right, title and interest that Speakeasy has in the Site and/or the Services, that are not expressly granted by Speakeasy to you, are retained by Speakeasy. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, exploited, or sold in any form or by any means, in whole or in part, without Speakeasy’s prior written permission, except that the foregoing does not apply to your own posted submission.
You agree that you may not upload or otherwise transmit on or through the Service and/or Sites any Content that is subject to any third-party rights, unless any holder of such rights has given express authorization for distribution on the Sites and/or the Services.
You agree that any Content you submit does not create an obligation for Speakeasy to provide you any payment or other remuneration. If and to the extent you are deemed to have retained, under applicable law, any right, title or interest in or to any portion of the Content, you hereby transfer, grant, convey, assign, and relinquish exclusively to Speakeasy all of your right, title, and interest in and to the Content, without reservation and without additional consideration, under applicable patent, copyright, trade secret, trademark, and other similar laws or rights, in perpetuity, and in the alternative to the extent such assignment is ineffective under applicable law, you hereby grant to Speakeasy, the exclusive, irrevocable, sublicensable, transferable, worldwide, paid-up license to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice the Content, all modified and derivative works thereof, all portions and copies thereof in any form, all inventions, designs, and marks embodied therein, and all patent, copyright, trade secret, trademark, and other intellectual property rights thereto, and/or to incorporate the same in other works in any form, media, or technology now known or later developed. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in the Content.
SECTION 15. THIRD-PARTY SERVICERS
You may have contact or other interaction with third parties by clicking third-party links on our Sites and being directed to third-party websites (the "Third-Party Servicers"). Speakeasy provides links to the Third-Party Servicers only as a matter of convenience, and the inclusion of any link does not imply an endorsement by Speakeasy of any Third-Party Servicers. You acknowledge and agree that you are proceeding at your own risk and any such Third-Party Servicers are not under our control. We shall be in no way responsible or liable, directly or indirectly, for any acts, omissions, breaches, representations or warranties made by any such Third-Party Servicers, or for any losses, injuries, or other damages you incur in connection with your contact or other interaction with them, including the content on, or the privacy practices of, such Third-Party Servicers. If you visit the website of, or submit information to, any Third-Party Servicer, your visit and the information you submit are at your own risk, and are governed by the terms and conditions and the privacy statement of that Third-Party Servicer. We encourage you to carefully read the privacy statements of any website you visit.
You assume all risks, known or unknown, now existing or hereafter arising, related to the transactions with the Third-Party Servicers, including, but not limited to, completing transactions, default, negligence, unauthorized use of your Account and password, and other users acting under false identity. You acknowledge that Speakeasy is not a party to any possible future disputes between you and the Third-Party Servicers. Resolution of any dispute is the full and sole responsibility of the involved parties, and Speakeasy will not act as a mediator between them. You release Speakeasy, its agents, representatives, and employees, from all claims, demands and damages, direct and indirect, suspected and unsuspected, arising from any such dispute.
SECTION 16. DISCLAIMER AND LIMITS ON LIABILITY
YOU REPRESENT THAT YOU ARE ENTERING THIS AGREEMENT WITHOUT RELYING UPON ANY SPEAKEASY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THE SITES AND THE CONTENT ARE PROVIDED "AS IS," "AS AVAILABLE," AND WITHOUT ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, NON-INTERFERENCE, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY LAW. YOUR ACCESS TO AND/OR USE OF THE SITES, SERVICES AND CONTENT IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL SPEAKEASY CO. OR ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS RELATING TO THE PURCHASE, SALE, DELIVERY AND/OR CONSUMPTION OF THE ALCOHOLIC BEVERAGE OR ANY CONSEQUENCES WHICH MAY RESULT THEREOF.
THE PRODUCTS AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED "AS IS," "AS AVAILABLE," AND WITHOUT ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, NON-INTERFERENCE, MERCHANT ABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESS DISCLAIMED TO THE EXTENT PERMITTED BY LAW; PROVIDED, HOWEVER, THAT THIS DISCLAIMER OF WARRANTIES IN THIS SECTION IS NOT APPLICABLE TO RESIDENTS OF THE STATE OF NEW JERSEY.
YOU ASSUME COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST SPEAKEASY, FOR THE SELECTION OF THE SITES AND SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR USE OF THE RESULTS OBTAINED FROM THE SITES AND SERVICES. SPEAKEASY DOES NOT WARRANT THAT THE SITES AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITES AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
TO THE MAXIMUM EXTENT PERMITTED BY LAW SPEAKEASY SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST ASSETS, LOST EARNINGS, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF REPLACEMENT OF GOODS OR SERVICES, LOST DATA, INTERRUPTION OR LOSS OF USE OF SERVICE, LOSS OF BUSINESS OPPORTUNITY, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITES OR SERVICES, YOUR PLACEMENT OR DELIVERY OF ORDERS OF ALCOHOL, MEMBERSHIPS OR GIFTS, OR YOUR USE OF THE PRODUCTS OR SERVICES OFFERED THROUGH THE SITES EVEN IF IT HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.
EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY FOR ALL OCCURRENCES UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE INJURED PARTY’S ACTUAL DIRECT DAMAGES, CAPPED AT AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY YOU TO SPEAKEASY DURING THE THREE (3) MONTHS PRIOR TO THE MOST RECENT EVENT GIVING RISE TO LIABILITY HEREUNDER. THE LIMITATIONS IN THIS SECTION 16 DO NOT APPLY TO A PARTY’S OBLIGATIONS WITH RESPECT TO (1) FEES AND OTHER AMOUNTS PAYABLE TO SPEAKEASY FOR THE SERVICES; (2) YOUR (OR YOUR AUTHORIZED USERS’) MISAPPROPRIATION OR MISUSE OF THE SERVICES IN BREACH OF THE TERMS OF THIS AGREEMENT; (3) THIRD PARTY CLAIMS FOR WHICH THERE IS INDEMNIFICATION HEREUNDER; OR (4) CLAIMS BASED ON FRAUD.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE EXTENT THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM OR LIMIT ITS LIABILITY UNDER APPLICABLE LAW.
SECTION 17. ERRORS AND INACCURACIES
We strive to provide complete, accurate, up-to-date information on our Sites. Unfortunately, despite those efforts, human or technological errors may occur. For example, our Sites may contain typographical errors, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted, and to change or update information at any time without prior notice. However, we undertake no affirmative obligation to update, amend or clarify information in the Service or on any related website, except as may be required by law. In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of products offered on the Sites.
SECTION 18. UNLAWFUL ACTIVITY
SECTION 19. INDEMNIFICATION
You agree to indemnify, defend and hold Speakeasy and its employees, officers, members, directors, agents, representatives, affiliates, service partners, Licensed Retailers, licensors, shareholders, representatives, successors and assigns harmless from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys' fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from, or in any way attributable to: (i) your use of the Sites, including the Services; (ii) anything you post to the Sites; (iii) any violation of these Terms and Conditions by you or through your Account or using your username; (iv) your violation of the rights of any third parties, including any allegation that any information, messages, or materials that you make available or create through the Sites or Services infringe or otherwise violate the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party; and/or (v) use of the Sites or your Account by any other person accessing the Sites using your computer or Internet access account.
SECTION 20. SURVIVABILITY
Any provision of these Terms and Conditions which contemplates performance or observance subsequent to termination or expiration of these Terms and Conditions shall survive termination or expiration of these Terms and Conditions and continue in full force and effect, including, without limitation, the provisions of Sections 13 (Acceptable Use Policy; Prohibited Uses), 14 (Limited License; Content), 16 (Disclaimer and Limits on Liability), 19 (Indemnification), 20 (Survivability), 22 (Governing Law) and 24 (Arbitration and Waiver of Class Actions).
SECTION 21. USER SUBMISSIONS
Speakeasy does not accept or consider unsolicited ideas, including ideas for new promotions, products, technologies, or processes (collectively, “User Submissions”). You must not transmit any User Submission to or through the Sites or to Speakeasy through email that you consider to be confidential or proprietary, and any User Submissions shall be deemed non-confidential. You are responsible and liable for any User Submissions. You agree, represent, and warrant that:
(a) Any User Submission is truthful, accurate, and not misleading;
(b) Any User Submission is offered in good faith; and
(c) You have the right to transmit such information.
SECTION 22. GOVERNING LAW
SECTION 23. EXPORT CONTROL
The Sites and Services are controlled and operated by Speakeasy from its offices within the United States. Speakeasy makes no representation that Content and other materials available through the Sites and Services are appropriate or available for use in any other locations. Those who choose to access the Sites and Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You agree to abide by applicable export control laws and not to transfer, by electronic transmission or otherwise, any Content or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Sites any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
SECTION 24. ARBITRATION AND WAIVER OF CLASS ACTIONS
You and Speakeasy agree that in the event of any dispute between us, each party will, in the first instance, notify the other party of the intent to initiate a formal proceeding in writing (the “Notice”). The parties shall attempt to resolve any controversy or claim arising out of, or relating to, any provision of the agreement or the breach thereof by good faith negotiations between the parties, and shall not initiate a formal proceeding for at least thirty (30) days from the date of the other party’s receipt of the Notice; provided that either party may seek formal relief in the event that it makes a good faith determination that a breach of these Terms and Conditions (or actual or threatened violation of its rights) by the other party is such that a temporary restraining order or other preliminary, injunctive or equitable relief is necessary. However, any such request by a party for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate hereunder.
FINAL, BINDING, AND CONFIDENTIAL ARBITRATION SHALL BE CONDUCTED BEFORE ONE ARBITRATOR IN THE COUNTY OF SAN DIEGO, CALIFORNIA. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES AND IN ACCORDANCE WITH THE EXPEDITED PROCEDURES IN THOSE RULES.
In any arbitration arising out of or related to this agreement, there shall be no interrogatories or requests to admit. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator.
The arbitrator’s decision will follow the terms of these Terms and Conditions. The arbitrator's decision shall be final and binding and may be enforced by any state or federal court that has jurisdiction; provided, however, that the arbitrator shall not have authority to make errors of law and any arbitration award may be challenged if the arbitrator does so. The arbitrator shall give a written statement of the disposition of each claim and the award, including any award of costs, expenses or interest, shall provide a concise written statement of the essential findings and conclusions upon which it is based.
The prevailing party, as determined by the arbitrator, shall be entitled to collect its reasonable costs, expenses, and interest (including reasonable attorneys' fees, arbitration fees, and other such costs). Judgment on the Award may be entered in any court having jurisdiction. This clause shall not prevent parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ARBITRATOR(S) ARE NOT EMPOWERED TO AWARD PUNITIVE OR EXEMPLARY DAMAGES, EXCEPT WHERE PERMITTED BY STATUTE, AND THE PARTIES WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES. THE ARBITRATOR(S) MAY NOT AWARD ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS.
The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as maybe necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
YOU AND SPEAKEASY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND SPEAKEASY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS WITH YOUR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
If a court refuses to enforce the waiver of class-wide arbitration, this entire arbitration provision shall be unenforceable and any claims brought on behalf of a putative class will proceed in court.
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Notwithstanding any of the foregoing, if we are suffering irreparable harm arising out of or related to your use of the Sites, we are not precluded from bringing an action or claim with respect thereto before the appropriate federal or state court located in the county of San Diego, California, and you consent to personal and subject matter jurisdiction of such court related to any such action or claim.
SECTION 25. NOTICE TO CALIFORNIA USERS
Residents of California who use the Sites are entitled to know there are no charges to the consumer for use of our Sites, other than the cost of any products or services purchased therein and any applicable taxes, shipping fees, and other charges associated with such purchases. Unless otherwise stated, these charges appear for each purchase on the order confirmation pages relating to each purchase and e-mailed to the consumer after purchase. We reserve the right to change our pricing. You may contact us to resolve a complaint regarding any aspect of our service by emailing us at email@example.com.
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
SECTION 26. ASSIGNMENT
SECTION 27. FORCE MAJEURE
Neither Speakeasy nor any service provider, including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives or affiliates, shall be liable for performance of its obligations under these Terms and Conditions if it is prevented or delayed from performing such obligations as a result of (i) any provision of any present or future law or regulation of any state or of the United States, (ii) any act of God, war, civil unrest, or emergency condition, (iii) the unavailability, failure or interruption of the Internet; (iv) pandemic (including COVID-19); or (v) any other circumstances beyond the reasonable control of Speakeasy or its service providers including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives or affiliates.
SECTION 28. WAIVER
Any waiver or failure to enforce any provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
SECTION 29. HEADINGS; SEVERABILITY
Any heading, caption, or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. In the event that any provision of these Terms and Conditions is declared void or unenforceable, such provision shall be deemed severed from these Terms and Conditions, and then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision. In such instance, the remainder of these Terms and Conditions shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision.
SECTION 30. ENTIRE AGREEMENT
SECTION 31. QUESTIONS
If you have any questions, comments or complaints regarding these Terms and Conditions or the Sites or Services, feel free to contact us at: firstname.lastname@example.org.