Last Updated July 16, 2014
2. Residency and Required Age. The Website is intended to be accessed and utilized by Users who have attained the age of majority in their respective state or province. By accessing and using the Website, User hereby represents, warrants, and affirms that it is either at least 18 years of age, an emancipated minor, or has acquired a parent or guardian’s consent. User hereby affirms that it is, at a minimum and without exception, 13 years old. The Website is not intended to be accessed or utilized by children less than 13 years of age.
a. Company does not provide health-related services and neither diagnoses nor treats any illness. Company's Website merely enables prospective customers to research and purchase Company's products. The United States Food and Drug Administration has not evaluated any claims pertaining to Company's products. Company does not guarantee or warrant, and makes no representations regarding, the reliability, quality or suitability of its products.
b. The Website and the entirety of its contents, products, and services provided therewith are provided "as is" and Company hereby disclaims all express and implied warranties including, but not limited to, warranties of merchantability and fitness for a particular purpose. Company expressly disclaims any representation that: (i) the Website and products offered thereon will meet User’s requirements; (ii) access to the Website will be uninterrupted, timely, secure, or error-free; (iii) any information obtained through or from the Website will be accurate or reliable; (iv) the quality of any products, services, information, or other material purchased or obtained by User through the website will meet User's expectations; (v) any User-provided information will not be disclosed to third-parties; or (vi) any website data or software errors will be corrected.
4. Proprietary Rights.
a. Ownership. All Website content, including any content User may provide to the website, is protected under international law and is owned by Company or its licensors. All rights not expressly granted under this Agreement are reserved by Company and its licensors.
b. Limited License. Company hereby grants User a limited, revocable, non-exclusive, non-transferable, non-sublicenseable right to use the Website solely for User's own personal, non-commercial purposes and at all times subject to the terms and conditions of this Agreement. User agrees not to sell, license, modify, distribute, reproduce, publicly display or perform, publish, or create derivative works from content available on the Website.
c. Termination. Any rights granted to User under the section shall immediately terminate upon User's breach of the terms of this Agreement.
5. User's Use of the Website.
a. General. User will be able to use the Website to research Company's products and, under certain circumstances, order products. User agrees to use the Website responsibly.
b. Account Registration. To use certain features of the Website, User may be asked to register with the Website. User agrees: (i) to provide true, accurate, current and complete information ("User Information") about itself as prompted by any registration or ordering form; and (ii) to maintain and promptly update its User Information to keep it true, accurate, current and complete. If Company has reasonable grounds to suspect that User Information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your access to and use of the Platform (or any portion thereof). User may be required to select a username (e.g., the User's email address) and password when completing the registration process. User is solely and fully responsible for maintaining the confidentiality of its username and password, and is solely and fully responsible for all activities that occur under its username and password. User agrees to: (i) immediately notify Company of any unauthorized use of User's username and password or any other breach of security; and (ii) ensure that User log off from its account at the end of each session. Company cannot and will not be liable for any loss or damage arising from User's failure to comply with this section.
c. Prohibitions. User agrees NOT to: (i) use any content or information available through the Website for any unauthorized purpose; (ii) interfere with or damage the Website including, without limitation, through the use of viruses, spyware, malware, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing, or methods that in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents; (iii) collect, store, or distribute any information about any other user other than in the course of the permitted use of the Website; (iv) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third-party privacy rights; (v) impersonate any person, company, or entity; (vi) modify, sublicense, translate, sell, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Website or any software used on or for the Website; (vii) attempt to gain unauthorized access to the Website or its related systems or networks or (viii) assist any third-party in doing any of the foregoing.
d. Payment/Refund Terms. Company reserves the right to determine and change product costs and applicable fees at its sole discretion. Company also reserves the right to create and provide promotional offers at its discretion. In the event User is dissatisfied with Company's products User has ordered and received, the User may notify company of its dissatisfaction by sending Company an email to email@example.com.
e. Shipping. Company utilizes UPS, FedEx, USPS, or other carrier service to deliver products purchased through the Website to Users. When ordering products through the Website, User will be prompted to enter appropriate billing and shipping information unless that information has previously been provided by User via User's account registration. The total cost of products and the cost of shipping, if applicable, will be clearly displayed to User. User will be provided order shipping information once User's order is placed.
f. Third-Party Payment Processing. Purchasing products through the Website may involve transferring User to the secured server of a payment processing service provider ("PSP") such as PayPal®, Authorize.net, or other independent company providing subscription payment processing and other billing services for website operators (e.g., Company). Neither PSP nor any person or company related to PSP holds any ownership interest in the Website nor receives any financial benefit from the Website other than a transaction fee paid by Company to PSP for the services performed by PSP. PSP has no control over the Website or any of the design, layout, content, subject matter, services, or persons which appear in or on or that are linked to the Website, or the geographical areas into which it may disseminate, broadcast, or permit the downloading of or access to the content or products offered by the Website. Accordingly, PSP makes absolutely no representations and/or warranties, and provides no assurances, regarding the Website, Company, or the quality, availability, legality, or description of the products offered thereon. PSP expressly disclaims any warranties of ability or fitness for a particular purpose with respect to the Website and/or the pRODUCTS offered hereon. Any disputes arising in connection with the Website, or the products being offered or purchased, are between User and Company. In certain circumstances, PSP may provide billing customer service for the Website in which case PSP may be handling such disputes. In all other cases, disputes related to products and services should be directed to the contact information contained on the Website and delineated in this Agreement. By submitting User’s request for authorization of its transaction, User acknowledges having read, understood and agreeing to the terms and conditions of this Agreement and User agrees to indemnify, defend, and hold PSP harmless from any and all liabilities, damages (including attorneys fees and associated costs) and other costs and expenses arising in connection with User’s visit to or use of the Website and/or User’s purchase or offer to purchase any of the products offered thereon.
6. Links. The Website may contain links to other Internet sites and resources. User hereby acknowledges and agrees that: (i) Company shall not be responsible for the availability of such external sites or resources; and (ii) Company does not endorse and is neither responsible nor liable for any content, advertising, products, services, or other materials on or available from such other websites or resources. User agrees that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the User's use of, or reliance upon, any such content, advertising, products, services, or other materials available on or through any other website or resource.
7. Limits on Liability. Company, its affiliates, subsidiaries, officers, directors, employees, agents, licensors, successors, or assigns ("Company Parties") shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages arising from or relating to: (i) the Website’s availability; (ii) the acts, omissions, or conduct of any user or third-party, whether online or offline; (iii) any Website content; (iv) any products or information acquired as a result of any transaction entered into through the Website; or (v) any use of products or services made available on any internet resource or webpage linked to the Website. The Company Parties shall not be held responsible for technical malfunctions of any telephone system, cable system, computer equipment, server, provider, or software. The Company Parties shall not be held responsible for any injury or damage to User’s computer resulting from use of the Website including, but not limited to, web page viewing, file downloading, game server use or access, or following Website links. User accesses the Website at his/her own risk and is singularly responsible for any loss, damage, or costs incurred during such activity. The Company Parties shall not be responsible for any incorrect or inaccurate content posted on the Website, regardless of the cause of such inaccuracy. The Company Parties shall not be responsible for any conduct of any User of the Website. The Company Parties shall not be responsible for any error, omission, interruption, deletion, defect, operational delay, communication line failure, or theft, destruction, or alteration of User’s communications to or through the Website. No data or information obtained from the Company Parties shall create any warranty.
The Company Parties aggregate liability to User or any third-party, in any matter arising from or related to the Website or the Agreement, shall not exceed the sum of one hundred dollars ($100.00).
User’s access or use of any third-party website or internet resource linked to or from the Website, or User’s use of products or services from third-party websites or internet resources linked to or from the Website, is made at User’s own risk. User hereby releases the Company Parties from any damages User suffers from User’s access to third-party website or internet resources, and User agrees not to make any claims against the Company Parties arising from any purchase or acquisition of products and services made available through the Website or though third-party websites or internet resources.
The Company Parties shall not be liable for any damages resulting from the failure, by any party, to protect User passwords or account information. The Company Parties shall not be liable for any failure or performance delay under the Agreement due to circumstances beyond the Company Parties’ control including, but not limited to, natural catastrophes, governmental acts, laws or regulations, terrorism, labor strikes or difficulties, communication system interruptions, hardware or software failures, transportation interruptions, or any inability to acquire materials or supplies.
8. Indemnification. User agrees to indemnify, defend, and hold harmless the Company Parties from and against any claim, loss, liability, or expense, including reasonable attorneys’ fees and expenses and court costs, arising out of or related to: (i) any third-party claim against any Company Party alleging that any User content or information posted or submitted to the Website infringes any of the third-party’s rights; (ii) any breach by User of any provision of this Agreement and/or any representation or warranty identified herein; or (iii) any cost or expense Company incurs in enforcing this Section. Company reserves the right to control the defense and settlement of any action or proceeding against any Company Party that User is bound to defend pursuant to the foregoing.
9. Suspension / Termination. Company, in its sole and unfettered discretion, may suspend or terminate all or part of User’s access to the Website for any reason including, without limitation, User’s breach of this Agreement. User agrees that any suspension or termination of its access to the Website may be effected without prior notice, and User agrees that: (i) Company may immediately deactivate or delete any of User’s information; and (ii) bar User's subsequent access to the Website. User agrees that Company shall not be liable to User or any third-party for any costs or damages of any kind for or resulting from any suspension or termination of User’s Website access. Company reserves the right to block users from certain IP addresses from accessing the Website.
10. Take-Down Requests, DMCA. Company expressly prohibits users from uploading, posting, or otherwise distributing through the Website any content which may violate another party's privacy, publicity, intellectual property, or other rights. If any User believes any Website content violates or otherwise infringes upon any of User’s rights, User is encouraged to contact Company immediately to request that the allegedly offending content ("Offending Content") to be removed from the Website. To make such a request ("Take-Down Request"), User should provide Company’s designed agent, listed below, with:
a. the identity of the Offending Content in sufficient detail such that it can be readily located (e.g., "The photograph of <detailed description> available at http://www. drinksleepyhead.com/item123.jpg");
b. User’s name, mailing address, email address, and telephone number; and
c. the name, user id, email, telephone phone number, and mailing address of the person User believes posted the Offending Content (as available).
In accordance with the Digital Millennium Copyright Act ("DMCA"), Company has designated a Copyright Agent who is charged with receiving notification of alleged copyright violations, and may accept notification of other offending Website content. If User believes in good faith that material appearing on this website infringes User's copyright, provide notification, pursuant to 17 U.S.C. § 512(c)(3)(A), to Company's Copyright Agent at:
Bayswater Beverages, LLC
1947 W. Winnemac Ave. #1
Chicago, IL 60640
Phone: (312) 224-8012
Fax: (312) 238-8986
Similarly, the DMCA provides that if one, in good faith, believe that a notice of copyright infringement has been wrongfully filed against him, he may send to Company's Copyright Agent a counter notice, subject to the requirements set forth in 17 U.S.C. § 512(g)(3).
Lastly, it should be noted that individuals making misrepresentations made in alleging that material appearing on this website constitutes copyright infringement may be liable for damages pursuant to 17 U.S.C. § 512(f).
Company will process proper Take-Down Requests, will promptly remove or disable access to any offensive or infringing content, and will terminate the accounts of repeat infringers.
11. Dispute Resolution Protocol.
a. Controlling Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Illinois and the United States of America, without regard to its conflict-of-law provisions. User and Company agree to submit to the personal jurisdiction of the Circuit Court of Cook County, Illinois or the United States District Court, Northern District of Illinois also located in Cook County, Illinois, for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
b. Negotiations. In the event any dispute arises, User and Company agree to first attempt to negotiate the resolution any dispute, except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights, informally for at least thirty (30) days before initiating any arbitration or court proceeding.
c. Other parties. User accept that, as a corporation, Company has an interest in limiting the personal liability of its officers and employees. User agrees that it will not bring any claim personally against Company's officers or employees in respect of any losses User suffers in connection with the Website. Without prejudice to the foregoing, User agrees that the limitations of warranties and liability set out in this Agreement will protect Company's officers, employees, agents, subsidiaries, successors, assigns, and sub-contractors as well as Company.
d. Binding Arbitration. All claims arising from use of the Website (except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights) will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. User understands that if either party elects to arbitrate, neither party will have the right to sue in court or have a jury trial. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes both of which are available at the AAA website http://www.adr.org. The parties will submit briefs of no more than 10 pages and the arbitration hearing will be limited to two (2) days maximum. The arbitrator will apply Illinois law. Unless otherwise agreed by the parties, arbitration will take place in Chicago, Illinois, United States of America. User's arbitration fees and User's share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If User's claim for damages does not exceed ten thousands dollars ($10,000), Company will pay all such fees unless the arbitrator finds that either the substance of User's claim or the relief sought was frivolous or brought for an improper purpose as determined pursuant to Federal Rule of Civil Procedure 11(b). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing. The arbitrator must follow Illinois law and any award may be challenged if the arbitrator fails to do so. The parties may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
e. Waiver of Right to be a Plaintiff or Class Member. User and Company agree that any arbitration will be limited to the dispute between Company and User individually. User acknowledges and agrees that User and Company are each waiving the right to participate as a plaintiff or class member in any purported class action or representative proceeding. The arbitrator may not consolidate more than one User's claims and may not otherwise preside over any form of any class or representative proceeding.
12. Miscellaneous. This Agreement is the entire agreement between the parties hereto, and replaces any and all prior negotiations, representations, or agreements between the parties, whether oral, electronic, or written, pertaining to the managerial relationship outlined herein. If any provision - or portion of a provision - of this Agreement is held invalid, unenforceable, or void, the remainder of the Agreement shall remain unaffected and shall continue in full force and effect. The parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, not contained in this Agreement. No waiver or any breach of this Agreement shall be construed as a continuing waiver or consent to any subsequent breach hereof. This Agreement is not intended, and will not be construed, to render Company, User, and/or third-parties, joint venturers, or co-owners.