TERMS OF USE

Web Site User Agreement

Updated on Aug 12, 2024

Welcome to our site (the “Site”). The Site is intended to provide you with information about our wines, campaigns, and sponsored events. It also allows you to interact with us and others and provides you the opportunity to contact us directly. While we want you to enjoy the experience of visiting our Site, we also want you to understand the terms to which you agree when visiting the Site. References to “we” or “us” or “our Brand” herein refer to Currently Wine Co. and its brands, affiliates, subsidiaries, service providers and designees as deemed appropriate by us.

Compliance with Terms

By accessing the Site, you are agreeing to these Terms of Use, our Privacy Policy, as well as other legal notices, terms and policies posted on the Site from time to time (together referred to as “Terms”), all of which are expressly incorporated herein by this reference. You agree to use the Site only in accordance with the Terms, whether you are a “Visitor” (which means that you simply browse the Site) or you are a “Member” (which means you have registered with us for the Site, if registration is available on the Site). The term “User” means a “Visitor” or a “Member”. Please read and save all of the Terms. If you do not agree with the Terms, do not use the Site or any of its features. If you register to become a Member you will be required to indicate your acceptance to these Terms of Use during the registration process.

Amendment

We may amend or terminate any Terms at any time. If we amend or terminate any Terms, we will notify you of such amendment or termination by posting the revised Terms on the Site and such revised Terms will be effective at the time we post them on the Site. Each time you use the Site, you should visit and review the then current Terms that apply to your transactions and use of the Site. Your continued use of the Site after we have posted revised Terms signifies your acceptance of such revised Terms. If you are dissatisfied with the Site, its content or any Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the Site. The Terms are the entire agreement between you and our Brand with respect to your use of the Site.

Eligibility

You are not permitted to view the Site unless you are 21 years of age or older. If you are younger than 21, please do not visit the Site. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 21 years of age. Use of the Site and its features and registration to be a Member (“Membership”) is void where prohibited. By using the Site and its features, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Site and its features does not violate any applicable law or regulation.

Term

The Terms, as we may revise them from time to time, shall remain in full force and effect while you use the Site features or are a Member. You may terminate your Membership at any time, for any reason, by following the instructions on the Member’s Account Settings page. We may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Even after Membership is terminated, the Terms will remain in effect and you will remain bound by them except that your right to use the Site as a Member will terminate. Any terms or conditions in these Terms of Use that must survive to give effect to their meaning, shall survive the termination, expiration, or cancellation of these Terms of Use.

Passwords

If registration is available on the Site, then when you register to become a Member, you will be asked to choose a user name and password. You are solely responsible for maintaining the confidentiality of this information. You are not permitted to allow anyone else to use your user name and password to log into the Site. You must notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account so please be vigilant in protecting its confidentiality.

Your Use of the Site

Users have a non-transferable, non-exclusive license to access the Site, to view information contained at the Site, and to interact with the Site solely for their own personal use and not for any commercial purpose. You agree not to use the Site for any unlawful purpose. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Site or any portion thereof or use it in any manner not expressly authorized by the Terms. You agree not to copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Site. Tampering with the Site, misrepresenting the identity or age of a User, using buying agents or conducting fraudulent activities on the Site are prohibited.

Purchases and Returns

As part of your use of the Site, you may be able to shop for and order or begin the process of ordering certain consumer products, including without limitation alcoholic beverages (“E-commerce Services”). The following terms apply to all E-commerce Services involving purchases of alcoholic beverages:

1. 21 Years of Age or Older to Purchase: You must be of legal drinking age to purchase alcohol on the Site.
2. 21 Years of Age or Older & In Person Signature Requirement: Deliveries require an adult signature of 21 years of age or older. After 3 attempts to deliver, shipments are held at UPS (or another shipper) for approximately 5 days and then returned. In the hopes of preventing this from happening you will be provided advance notice and tracking numbers for shipments.
3. Shipping Costs: Except as otherwise indicated, as part of our E-commerce Services you are responsible for all shipping charges.
4. Returned Packages: If a package you ordered is returned for any reason, including but not limited to failed delivery and re-shipment to us or to a third party service provider, you are responsible for such re-shipping charges and any other charges incurred due to the return.
5. Tracking: Shipping tracking numbers are provided so you are aware of when a shipment is due to be delivered and can arrange for an adult of 21 years of age older to be available to sign for the package.
6. Legal Restriction: Unfortunately, regulations restrict us from shipping alcohol to PO Boxes or APO/FPO addresses.
7. Taxes & limitations: Individual state regulations for taxes and limits do apply.
8. Regulations: Regulations for shipping wine/mead/cider vary by state. We comply with all regulations based on their individual shipping laws and limitations. Due to current state regulations, we regretfully cannot ship wine to all states.
9. Damaged shipments: Damaged shipments are insured. Please notify us if your shipment is damaged.
10. Sold: Once the order is processed the wine is considered purchased even if returned. All sales are final.
11. Heat & Weather Conditions: During very hot or cold weather, please consider selecting the fastest shipping speed or hold the shipment until the weather is less extreme. We cannot be responsible for damage to the wines due to extreme weather.
12. Delivery Service Provider: Wine is shipped via UPS or another shipping services provider we may select.

As part of providing the E-commerce Services, we may use one or more third party service providers to provide e-commerce checkout, fulfillment, or shipping services (including via UPS), including via one or more third party websites (“Third Party E-commerce Services”). We assume no responsibility or liability for, and make no warranties, express or implied, as to any content or functionality of the Third Party E-commerce Services or for any error, omission, policy, or behavior of the Third Party E-commerce Services.

User Content

Generally We may, but are not obligated to, allow you to upload content for display on the Site. If we allow this feature, please choose carefully the information you post on the Site, provide to other Users and/or otherwise make available to us and through the Site. Your content may not include any form of Prohibited Content, as outlined below. Despite this prohibition, information, materials, products or services provided by other Members (for instance, in their profile or displayed on the Site in areas in which Users can post content) may, in whole or in part, be unauthorized, impermissible or otherwise violate the Terms, and we assume no responsibility or liability for this material. If you become aware of misuse of the Site or its features by any person, please contact us by using the email link in the Site’s footer or by using the email address in the “Contact Us” section of the Privacy Policy and notify us of the misuse. We reserve the right, in our sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice or explanation, and without liability. We expressly reserve the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Site if we determine, in our sole discretion, that you have violated the Terms, pose a threat to us, our suppliers and/or our Users or for any other purpose we determine in our sole discretion. Proprietary Rights and Grant of License to Currently Wine Co. We do not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on the Site (if applicable). After posting your Content to the Site, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying, publishing Content on the Site, or otherwise submitting Content to us (collectively, “posting”), you hereby grant to Currently Wine Co. an irrevocable, perpetual, worldwide, royalty-free, non-exclusive license to use, modify, delete from, add to, create derivative works of, publicly perform, publicly display, reproduce and distribute (and to sublicense the foregoing rights through multiple tiers of licensees) such Content on or through the Site and/or in connection with advertising and promoting the Site (including, for example, through screen shots) and/or our products and any other Currently Wine Co. products or brands in any media formats and through any media channels now existing or developed in the future. For purposes of clarity, the license granted to us herein permits us to use your Content for (among other things) commercial exploitation and in connection with any of the brands or products of Currently Wine Co. and in any of our social media platforms. From time to time, we may remove Content from the Site, permanently or temporarily, provided that even if we do remove such Content from the Site, we shall have no obligation to cease our other uses of the Content as permitted above. You represent and warrant that: (i) you own the Content posted by you on or through the Site or otherwise have the right to grant the licenses set forth above, and (ii) the posting of your Content on or through the Site does not violate the privacy rights, publicity rights, contract rights, intellectual property or any other rights of any person or entity. In furtherance of the foregoing, you agree that you will not post Content that violates or is not in compliance with our Acceptable Use Policy, described below. You agree to be fully responsible for and to pay any and all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you. The Site may contain Content provided by our Brand, including, without limitation, text, images and logos (“Brand Content”). Brand Content is protected by copyright, trademark, patent, trade secret and other laws, and we own and retain all rights in the Brand Content and the features and functionality of the Site. We hereby grant you a limited, revocable, nonsublicensable license to reproduce and display the Brand Content (excluding any software code) solely for your personal use in connection with viewing the Site. The Site may contain Content of Users and other licensors. Except as provided within the Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use for any commercial purpose, or sell any Content appearing on or through the Site. Content Posted We may reject, refuse to post or delete any Content for any or no reason, including, without limitation, Content that in the sole judgment of our Brand violates these Terms or our Privacy Policy. We assume no responsibility for monitoring the Site for inappropriate Content or conduct. If at any time we choose, in our sole discretion, to monitor the Site, we nonetheless assume no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content. You are solely responsible for your use of the Site, the Content that you post on or through the Site, and any material or information that you transmit to other Members and for your interactions with other Users.

Web Site User Acceptable Use Policy

This Acceptable Use Policy encourages the responsible use of the Site and any features and functionality made available through the Site. The purpose of this policy is to delineate the type of actions and content that are contrary to our mission and philosophies as well as to ensure that your use of our Site is in compliance with applicable laws, rules and regulations. Prohibited Use and Content In general, while using the Site you may not take any action (including the posting of any content) that at the sole discretion of Currently Wine Co. is contrary to our advertising and marketing philosophies and practices, or otherwise contradicts applicable laws, rules, and regulations. The following list includes examples of content and actions we prohibit on our Site. Please review this list carefully. You are required to strictly adhere to these prohibitions and your failure to do so could result in, among other things, suspension of your Membership rights for the Site and/or legal and financial liability. Therefore, actions you take, including posting of content, on this Site shall not:

• Offend Generally Accepted Standards of Public Decency and Respect of Others

  . For example, the content must not:
  • Contain derogatory references towards race, sexual preference, gender, minorities, or religious affiliations;
  • Promote bigotry, hatred or physical harm of any kind against any group or individual;
  • Harass or advocate harassment of another person, including using any information obtained through the Site to harm or abuse another person or entity;
  • Contain nudity, sexually explicit content, violence, abuse, or offensive subject matter;
  • Contain a link to an adult website or any website with an audience demographic of less than 70% above the legal drinking age;
  • Use profanity or vulgar language;
  • Promote, depict, or feature criminal or illegal activities, drug use, drug dealing, gambling, theft, fraud, or conduct that is abusive, threatening, or obscene.

• Use Unacceptable Depictions or Portrayals of Alcohol.

   For example, the content must not:
  • Feature, communicate with, or solicit anyone under the applicable legal drinking age;
  • Promote, poke fun at, or display excessive or binge drinking;
  • Feature consumption of alcohol by underage people or pregnant women;
  • Exhibit a person operating any motorized vehicle during or after consuming alcohol, or participating in any activity requiring a high degree of alertness or physical coordination;
  • Contain items with significant underage appeal;
  • Showcase opinions on potential benefits of alcohol.

• Infringe Intellectual Property, Publicity and Privacy Rights of Others.

   For example, the content must not:
  • Constitute or promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, or providing pirated music or links to pirated music files;
  • Involve the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”;
  • Publicly post information that poses a privacy or security risk to any person;
  • Contain restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
  • Further or promote any criminal activity or enterprise or provide instructional information about illegal activities such as violating someone’s privacy, or creating or transmitting computer viruses;
  • Solicit passwords or personal identifying information for commercial or unlawful purposes from others;
  • Include a photograph or video of another person posted without that person’s consent. All photographs or videos require signed authorization from the individuals pictured or recorded;
  • Violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person;
  • Make derogatory references towards Currently Wine Co. and its products, competitor’s company or products, any individual, company, or brand;
  • Incorporate trademarked material (company names, sports teams, TV shows, movies, celebrities, songs, works of art, recipes, etc);
  • Include or invoke celebrity names or photographs;
  • Result in or encourage (a) use of the account, username, or password of another user at any time, (b) disclosure of your password to any third party, or (c) any third party to access your account;
  • Impersonate or attempt to impersonate another user, person or entity; includes any promotion or endorsement, whether intentional or implied, of any product, software, or application;
  • Have the effect of selling or otherwise transferring your profile;
  • Use any deep-link, page-scrape, spider, robot, crawl, index, Internet agent or other automatic device, program, algorithm or technology which does the same things, to use, access, copy, acquire information, generate impressions, input information, store information, search, generate searches or monitor any portion of this Site or otherwise permit the unauthorized use of or access to a computer or a computer network.

• Infringe on Other Rights.

   For example, content shall not:
  • Result in displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third party in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Site on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, or sending private messages with a commercial purpose;
  • Constitute or promote information that you know is false or misleading;
  • Involve commercial activities and/or sales such as contests, sweepstakes, barter, advertising;
  • Contain information regarding Currently Wine Co. events unapproved by Currently Wine Co. and their Compliance Department;
  • Incorporate political affiliations, the armed forces, or any country’s flag, crest, seal, coat of arms, or other insignia; or
  • Be otherwise inconsistent with any and all applicable laws and regulations.

 

Protection of Intellectual Property Rights and Notice and Procedure for Making U.S. Claims of Copyright Infringement

We respect the intellectual property of others, and require that our Users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. We reserve the right to terminate the Membership of anyone we suspect to be an infringer. If you believe that your intellectual property has been copied and/or provided to us in a way that constitutes copyright infringement, you may request removal of the content pursuant to the following procedures: If you believe that your work has been copied in a way that constitutes copyright infringement, please provide a notice with the following information to the Site’s Copyright Agent:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the material that you claim is infringing is located on the Site;
• Your address, telephone number and e-mail address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, it’s agent or the law;
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Currently Wine Co. Copyright Agent for notice is: Brian Thurber cheers@currentlywine.com We may give notice to our users by means of a general notice on our Site, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated Copyright Agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Currently Wine Co. may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Disclaimers

We are not responsible for and make no warranties, express or implied, as to any content on the Site, including, without limitation with respect to the accuracy and reliability of the Brand Content, User Content or other Content posted on or through the Site, whether caused by us, by Users, by any of the equipment or programming associated with or utilized by the Site, or otherwise. The User Content does not necessarily reflect the opinions or policies of our Brand. Profiles and third party applications created and posted by Members on the Site may contain links to other websites. We are not responsible for the content, accuracy or opinions expressed on such websites, and such websites are not necessarily investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked website on the Site does not imply approval or endorsement of the linked website by our Brand. When you access these third party sites, you do so at your own risk. We take no responsibility for third party advertisements or third party applications that are posted on or through the Site, nor do we take any responsibility for the goods or services provided by our advertisers. We are not responsible for the conduct, whether online or offline, of any User of the Site including, without limitation, any Content posted by any User. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. We are not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any portion of the Site or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Site. Under no circumstances shall we be responsible for any loss or damage, including personal injury or death, resulting from use of the Site, attendance at a Brand event, from any User Content posted on or through the Site, or from the conduct of any Users, whether online or offline. Additionally, we shall have no liability for any viruses or anything beyond our control. We are not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Site. We will not be liable to you if you are unable to access information through the Site. Some states do not allow the exclusion or limitation of certain warranties and/or liabilities, so certain of the above limitations or exclusions may not apply to you.

Our Site is provided “AS-IS” and as available and we expressly disclaim any warranty of fitness for a particular purpose or non-infringement. We cannot guarantee and do not promise any specific results from use of the Site.

Limitations of Our Liability

IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION COMPENSATORY, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS. IF THE WARRANTY EXCLUSIONS OR LIMITATIONS OF LIABILITY SET FORTH IN THIS USE AGREEMENT ARE FOR ANY REASON HELD UNENFORCEABLE OR INAPPLICABLE, YOU AGREE THAT OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100).

Our Service Providers

We may use one or more third party service providers to design and/or operate parts of the Site. In such cases, each such service provider is also included in the terms “we” and “us” for purposes of the Terms. We may also use one or more third party service providers to provide e-commerce checkout or fulfillment services via a third party website.

Indemnification

You agree to indemnify and hold Currently Wine Co., its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, cost, expense, claim, or demand, including without limitation, reasonable attorneys’ fees, due or relating to or arising out of your use of the Site in violation of the Terms and/or arising from a breach of the Terms and/or any breach of your representations and warranties set forth in the Terms and/or arising out of or relating to any Content that you post. We are based in the United States of America. We make no claims that the Site, any Brand Content, User Content or other Content are appropriate or may be transmitted, used or installed outside of the United States. Access may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.

Miscellaneous

The Terms will be construed, and their performance enforced, under the laws of Massachusetts without reference to choice of law principles. Any dispute relating to the Terms or the Site may be litigated only in a court having jurisdiction and venue in Suffolk County for state court causes of action and in the Eastern District of Massachusetts for federal court causes of action. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms. We may assign the Terms, in whole or in part, to a related entity or to a third party or to any third parties in connection with the sale, assignment, or other transfer of the Site or sale, assignment, merger, reorganization, or other transfer of any of our brands or companies.

Arbitration

Generally BY USING OUR SITE, YOU AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS BETWEEN US. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) claims that arose before these or any prior Terms were adopted; (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of these Terms of Use. You agree, by entering into these Terms of Use, that you and our Brand each are waiving the right to a trial by jury or to participate in a class action. These Terms of Use evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive the termination of these Terms of Use. Opt Out Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE WHEN YOU FIRST ACCEPT THESE TERMS (the “Opt Out Deadline”). You may opt out of these arbitration procedures by emailing cheers@currentlywine.com to request the opt out form. Any opt out received after the Opt Out Deadline will not be valid and you must pursue any claim in arbitration. Notice of Disputes For all disputes and claims, whether pursued in court or arbitration, you must first give us an opportunity to resolve your dispute or claim by sending a written, electronic Notice of Dispute (the “Notice”) to us at the following email address: cheers@currentlywine.com. The Notice must (a) describe the nature and basis of the dispute or claim and (b) set forth the specific relief sought (a “Demand”). If our Brand and you do not reach an agreement to resolve the dispute or claim within 30 days after Notice is received, you or our Brand may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. The arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use and will be administered by the AAA. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator is bound by the terms of these Terms of Use. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the Terms, including but not limited to, any claim that all or any part of the Terms are void or voidable. The payment of all AAA filing, administration and arbitrator fees for any arbitration initiated hereunder will be governed by the AAA Rules; provided, however that for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims under $75,000 determined to be frivolous, we agree not to seek an award of attorneys’ fees in such arbitration proceedings even if an award is otherwise available under applicable law. Unless we agree otherwise, any arbitration hearings will take place in the county of your billing address.

Class Action Waiver

YOU AND OUR BRAND 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 of us agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If you choose to pursue your claim in court by opting out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other User, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THE TERMS. The Terms are accepted upon your use of the Site or any of its features and is further affirmed upon you becoming a Member (if applicable). The Terms constitute the entire agreement between you and our Brand regarding the use of Site and its services and features. Our failure to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. The section titles in the Terms are for convenience only and have no legal or contractual effect. The Terms operate to the fullest extent permissible by law. If any provision of the Terms is unlawful, void or unenforceable, that provision is deemed severable from the Terms and does not affect the validity and enforceability of any remaining provisions.