PLEASE READ THIS BINDING LEGAL AGREEMENT CAREFULLY. Beyond Alcohol, Inc. a subsidiary of Beyond Alcohol Ltd (“Three Spirit,” “Company” “we”, or “us”), provides a website that allows consumers to purchase non-alcoholic social elixirs. The Three Spirit website is located at https://us.threespiritdrinks.com/ (collectively, the “Website,” and the Website, together with any products and services provided by Three Spirit, the “Services”).
Subject to Section 14.9 of these Terms, Three Spirit reserves the right to modify these Terms or its policies relating to the Services at any time, effective upon posting of an updated version of these Terms on the applicable Services. You should regularly review the Terms, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1.Use of the Services and Three Spirit Properties. The Website, the Services, and the information and content available on the Website and the Services (as these terms are defined herein) (collectively, the “Three Spirit Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Three Spirit grants you a limited license to reproduce portions of Three Spirit Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Three Spirit in a separate license, your right to use any Three Spirit Properties is subject to the Terms.
1.1Updates. You understand that Three Spirit Properties are evolving. As a result, Three Spirit may require you to accept updates to Three Spirit Properties that you have installed on your computer or mobile device. You acknowledge and agree that Three Spirit may update Three Spirit Properties with or without notifying you. You may need to update third-party software from time to time in order to use Three Spirit Properties.
1.2Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, resell, upload, use, copy, rent, lease, lend, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Three Spirit Properties or any portion of Three Spirit Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Three Spirit Properties (including images, text, page layout or form) of Three Spirit, or use the Three Spirit Properties in any way that might confuse, misdirect, or misrepresent its source, or sponsorship or affiliation thereof or therewith; (c) you shall not use any metatags or other “hidden text” using Three Spirit’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Three Spirit Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to access, monitory, copy or use the Three Spirit Properties, interfere with product inventory or availability, or place or take preparatory steps to place orders for products, goods or services, or “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) you shall not access Three Spirit Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Three Spirit Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not take any action that imposes any unreasonable or disproportionately large load on the Three Spirit Properties; (i) you shall not take any action in connection with your use of the Three Spirit Properties which violates any applicable local, state, national or international law, rule, regulation or order of any court in conjunction with your use thereof; (j) you shall not otherwise use the Three Spirit Properties for any unlawful or abusive purposes, including, but not limited to, the violation of any intellectual property rights (whether belonging to Three Spirit or third parties) and the posting or distribution of any “harmful” or “malicious” code or programming devices (e.g., viruses, malware, ransomware, corrupted files, key locks, back doors, trap doors, timers or other disabling devices) or any other similar software or programs that may adversely affect the operation of the Services or any other software, hardware, network or other technology (collectively, “Malicious Code”); and (k) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Three Spirit Properties. Any future release, update or other addition to Three Spirit Properties shall be subject to the Terms. Three Spirit, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Three Spirit Properties terminates the licenses granted by Three Spirit pursuant to the Terms.
1.3Third-Party Materials. As a part of Three Spirit Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Three Spirit to monitor such materials and that you access these materials at your own risk.
2.1Registering Your Account. In order to access certain features of Three Spirit Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”).
2.2Registration Data. In registering an account on the Website, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Three Spirit Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Three Spirit Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Three Spirit has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Three Spirit has the right to suspend or terminate your Account and refuse any and all current or future use of Three Spirit Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Three Spirit Properties if you have been previously removed by Three Spirit, or if you have been previously banned from any of Three Spirit Properties.
2.3Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Three Spirit.
2.4Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Three Spirit Properties, including but not limited to, a mobile device that is suitable to connect with and use Three Spirit Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Three Spirit Properties.
3.1Three Spirit Properties. Except with respect to any content you may post and any content a User may post, you agree that Three Spirit and its suppliers own all rights, title and interest in Three Spirit Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Three Spirit Properties.
3.2Trademarks. Three Spirit and other related graphics, logos, service marks and trade names used on or in connection with Three Spirit Properties or in connection with the Services are the trademarks of Three Spirit and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Three Spirit Properties are the property of their respective owners.
3.3Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Three Spirit through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Three Spirit has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Three Spirit a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Three Spirit Properties.
3.4Ratings and Reviews. Ratings and reviews posted by Users on our Services are not endorsed by Three Spirit and do not represent the views of Three Spirit. Three Spirit does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable institution, business, product, or service; (ii) you will not provide a rating or review for any institution, business, product, or service with respect to which you have a competitive, ownership or other economic interest or employment relationship; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such rating or review without notice.
4.User Conduct. As a condition of use, you agree not to use Three Spirit Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) make available any content on or through Three Spirit Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) promotes drinking and driving or irresponsible consumption of alcohol, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Three Spirit’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Three Spirit; (vi) interferes with or attempt to interfere with the proper functioning of Three Spirit Properties or uses Three Spirit Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Three Spirit Properties, including but not limited to violating or attempting to violate any security features of Three Spirit Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Three Spirit Properties, introducing viruses, worms, or similar harmful code into Three Spirit Properties, or interfering or attempting to interfere with use of Three Spirit Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Three Spirit Properties.
5. Third-Party Services. Three Spirit Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left Three Spirit Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Ads are not under the control of Three Spirit. Three Spirit is not responsible for any Third-Party Websites or Third-Party Ads. Three Spirit provides these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads, or their products or services. You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
6. Fees and Purchase Terms. 6.1Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide us with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”) in order to purchase products and to use certain Services. Your Payment Provider agreement governs your use of any designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Three Spirit with your credit card number and associated payment information, you agree that Three Spirit is authorized to immediately invoice your Account for all fees and charges due and payable to Three Spirit hereunder and that no additional notice or consent is required. You agree to immediately notify Three Spirit of any change in your billing address or the credit card used for payment hereunder. Three Spirit reserves the right at any time to change its prices and billing methods, either immediately upon posting on Three Spirit Properties or by e-mail delivery to you. All fees are, unless otherwise stated, non-refundable and stated in U.S. dollars.
6.2Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Three Spirit communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
6.3Orders. We reserve the right to refuse any order you place with us, including if: (i) we discover an error in pricing and/or other information about the products or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered product is unavailable due to discontinuance or otherwise. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
6.4Title and Risk of Loss. Title and risk of loss for any purchased goods pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the goods ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
6.5Products or Services. Certain products or services may be available exclusively online through the Website. These products or services may have limited quantities and are subject to our return and refund policies. We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. We cannot guarantee that your computer monitor's display of any color will be accurate. We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Website is void where prohibited.
6.6Taxes. Three Spirit’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Three Spirit, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Three Spirit for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Three Spirit is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.7Withholding Taxes. You agree to make all payments of fees to Three Spirit free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Three Spirit will be your sole responsibility, and you will provide Three Spirit with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
7. Return Policy. 7.1Damaged or Faulty Goods. For up to thirty (30) days from the purchase date, if your goods are faulty or damaged, Three Spirit shall refund the price of your faulty or damaged goods in full upon return of such goods. For up to three (3) months from the purchase date, if your goods are faulty or damaged, in most cases, Three Spirit shall refund the price of your faulty or damaged goods in full upon return of such goods. Such refunds shall be Three Spirit’s sole obligation and your exclusive remedy for any deficiency in goods ordered from us. Your goods will not be considered damaged or faulty if such goods are merely not to your liking or preference.
7.2Refunds and Return Procedure. If you wish to receive a refund as set forth in Section 7.1, you must mail the goods back to Three Spirit, who will pay the cost of postage. Please e-mail us at email@example.com for a return label. Any refunds due to you upon Three Spirit’s receipt of the returned goods shall be made by your Payment Provider. Your refund shall be processed within fourteen (14) days from the date on which we received the returned goods, or on the date on which you provide us with evidence that you have mailed such returned goods back to us. Three Spirit only provides refunds on purchase made on the Website.
8. Indemnification. You agree to indemnify and hold Three Spirit, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Three Spirit Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) any content you may post; (b) your use of, or inability to use, Three Spirit Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Three Spirit reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Three Spirit in asserting any available defenses. This provision does not require you to indemnify any of the Three Spirit Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Three Spirit Properties.
9. Disclaimer of Warranties and Conditions. 9.1As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THREE SPIRIT PROPERTIES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THREE SPIRIT PROPERTIES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THREE SPIRIT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING THE PRODUCTS OR SERVICES. THIS SECTION 9 DOES NOT AFFECT IN ANY WAY OUR RETURN POLICY OR LIMITED WARRANTY FOR THE PRODUCTS. (A) THREE SPIRIT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THREE SPIRIT PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THREE SPIRIT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THREE SPIRIT PROPERTIES WILL BE ACCURATE OR RELIABLE. (B) ANY CONTENT ACCESSED THROUGH THREE SPIRIT PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THREE SPIRIT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. (C) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THREE SPIRIT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. (D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THREE SPIRIT OR THROUGH THREE SPIRIT PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2Products Disclaimer. DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS, PRICES, AND AVAILABILITY OF ANY PRODUCTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. OUR CURRENT PRICES CAN BE FOUND ON THE SERVICES. WE MAKE REASONABLE EFFORTS TO ACCURATELY DISPLAY THE ATTRIBUTES OF OUR PRODUCTS, INCLUDING THE APPLICABLE COLORS; HOWEVER, THE ACTUAL COLOR YOU SEE WILL DEPEND ON YOUR COMPUTER SYSTEM, AND WE CANNOT GUARANTEE THAT YOUR COMPUTER WILL ACCURATELY DISPLAY SUCH COLORS. THE INCLUSION OF ANY PRODUCTS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE PRODUCTS WILL BE AVAILABLE AT ANY TIME. IT IS YOUR RESPONSIBILITY TO ASCERTAIN AND OBEY ALL APPLICABLE LOCAL, STATE, FEDERAL AND INTERNATIONAL LAWS (INCLUDING MINIMUM AGE REQUIREMENTS) IN REGARD TO THE POSSESSION, USE AND SALE OF ANY ITEM PURCHASED THROUGH THE WEBSITE. BY PLACING AN ORDER, YOU REPRESENT THAT THE PRODUCTS ORDERED WILL BE USED ONLY IN A LAWFUL MANNER. WE RESERVE THE RIGHT, WITH OR WITHOUT PRIOR NOTICE, TO LIMIT THE AVAILABLE QUANTITY OF OR DISCONTINUE ANY PRODUCT OR SERVICE; TO HONOR, OR IMPOSE CONDITIONS ON THE HONORING OF, ANY COUPON, COUPON CODE, PROMOTIONAL CODE OR OTHER SIMILAR PROMOTIONS; TO BAR ANY USER FROM MAKING ANY OR ALL PURCHASE(S); AND/OR TO REFUSE TO PROVIDE ANY USER WITH ANY PRODUCT OR SERVICE. 9.3 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THREE SPIRIT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THREE SPIRIT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10. Limitation of Liability. 10.1Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THREE SPIRIT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THREE SPIRIT PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT THREE SPIRIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THREE SPIRIT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THREE SPIRIT PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THREE SPIRIT PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THREE SPIRIT PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THREE SPIRIT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A THREE SPIRIT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A THREE SPIRIT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A THREE SPIRIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2Cap on Liability. UNDER NO CIRCUMSTANCES WILL THREE SPIRIT PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO THREE SPIRIT BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; OR (C) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A THREE SPIRIT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A THREE SPIRIT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A THREE SPIRIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THREE SPIRIT AND YOU.
11. Remedies. If Three Spirit becomes aware of any possible violations by you of the Terms, Three Spirit reserves the right to investigate such violations. If, as a result of the investigation, Three Spirit believes that criminal activity has occurred, Three Spirit reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Three Spirit is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Three Spirit Properties, including any content you may post, in Three Spirit’s possession in connection with your use of Three Spirit Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that the content you may post violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Three Spirit, its Users or the public, and all enforcement or other government officials, as Three Spirit in its sole discretion believes to be necessary or appropriate.
12. Term and Termination. 12.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Three Spirit Properties, unless terminated earlier in accordance with the Terms.
12.2 Termination of Services by Three Spirit. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Three Spirit is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Three Spirit has the right to, immediately and without notice, suspend or terminate any Services provided to you. Three Spirit reserves the right to refuse service and/or prohibit or terminate access to the Three Spirit Properties, in whole or in part, for any or no reason, at any time in its sole discretion, with or without notice to you. Further, your breach of these Terms may jeopardize your continued use of the Three Spirit Properties and may result in the cancellation of your orders, among other consequences. You agree that all terminations for cause shall be made in Three Spirit’s sole discretion and that Three Spirit shall not be liable to you or any third party for any termination of your Account.
12.3 Termination of Services by You. If you want to terminate the Services provided by Three Spirit, you may do so by (a) notifying Three Spirit at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Three Spirit's address set forth below.
12.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including the content you may post. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of any content you may post associated therewith from our live databases. Three Spirit will not have any liability whatsoever to you for any suspension or termination, including for deletion of the content you may post. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. International Users. Three Spirit Properties can be accessed from countries around the world and may contain references to Services and content that are not available in your country. These references do not imply that Three Spirit intends to announce such Services or content in your country. Three Spirit Properties are controlled and offered by Three Spirit from its facilities in the United States of America. Three Spirit makes no representations that Three Spirit Properties are appropriate or available for use in other locations. Those who access or use Three Spirit Properties from other countries do so at their own volition and are responsible for compliance with local law.
14. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Three Spirit and limits the manner in which you can seek relief from us.
14.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Three Spirit, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Three Spirit may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of these Terms or any prior version of these Terms.
14.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at: United Corporate Services, Inc., 874 Walker Road, Suite C, Dover, DE 19904. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Three Spirit will pay them for you. In addition, Three Spirit will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Three Spirit. The arbitration proceeding 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 arbitral forum’s rules, and the Terms (including the Arbitration Agreement). 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 us.
14.4 Waiver of Jury Trial. YOU AND THREE SPIRIT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Three Spirit are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
14.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Three Spirit, 46 Circle Drive, Irvington, NY 10533 or firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Three Spirit username (if any), the email address you used to set up your Three Spirit account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.7 Severability. Except as provided in Section 14.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
14.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Three Spirit.
14.9 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Three Spirit makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Three Spirit at the following address: Three Spirit, 46 Circle Drive, Irvington, NY 10533 or email@example.com.
15. General Provisions. 15.1 Electronic Communications. The communications between you and Three Spirit use electronic means, whether you visit Three Spirit Properties or send Three Spirit e-mails, or whether Three Spirit posts notices on Three Spirit Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Three Spirit in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Three Spirit provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
15.2 Release. You hereby release Three Spirit Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Three Spirit Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Three Spirit Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Three Spirit Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
15.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Three Spirit’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4 Force Majeure. Three Spirit shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, epidemics, pandemics strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a force majeure event occurs that affects Three Spirit’s performance of its obligations under these Terms: (a) Three Spirit will contact you as soon as reasonably possible to notify you; and (b) Three Spirit’s obligations under these Terms will be suspended and the time for Three Spirit’s performance of its obligations will be extended for the duration of the force majeure event. You may cancel the Services affected by a force majeure event which has continued for more than 30 days. To cancel please contact Three Spirit.
15.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Three Spirit Properties, please contact us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.6 Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Three Spirit agree that all claims and disputes arising out of or relating to the Terms will be litigated exclusively in the state or federal courts located in Westchester County, NY.
15.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
15.8 Notice. Where Three Spirit requires that you provide an e-mail address, you are responsible for providing Three Spirit with your most current e-mail address. In the event that the last e-mail address you provided to Three Spirit is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Three Spirit’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Three Spirit at 46 Circle Drive, Irvington, NY 10533 or email@example.com, where email notice is allowed. Such notice shall be deemed given when received by Three Spirit by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.10 Severability. If any portion of these Terms is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.11 Export Control. You may not use, export, import, or transfer Three Spirit Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Three Spirit Properties, and any other applicable laws. In particular, but without limitation, Three Spirit Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Three Spirit Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Three Spirit Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Three Spirit are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Three Spirit products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services 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.
15.13 Entire Terms. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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