Terms of Use | beergang, inc

BEERGANG, INC.

Date of Last Revision: August 28, 2020

1. Introduction

Your use of Beergang.beer (our “Site”), Beergang’s apps and other websites, and any related offerings is subject to this Terms of Use Agreement (“Terms”, “Term of Use” or “Agreement”). In this Terms of Use Agreement, Beergang, Inc. is referred to as “Beergang”, “us”, “we” or “our”. By accessing or using our Site, each Retailer user (the “User” or “you”) acknowledges that he/she/it has read, understands and agrees to be bound by this Agreement. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms at any time without notice by posting the changes to these Terms on this page. The date of last revision will be listed at the top of this page. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms. If you do not agree to abide by these or any future Terms, do not use or access (or continue to use or access) the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. THIS INTRODUCTION IS FULLY INCORPORATED IN THIS AGREEMENT BY THIS REFERENCE.

THESE TERMS ARE A LEGAL AGREEMENT BETWEEN YOU AND BEERGANG, YOU WILL BE REQUIRED TO USE BINDING ARBITRATION TO RESOLVE DISPUTES WITH BEERGANG. PLEASE READ THESE TERMS CAREFULLY.

If you have any questions about these Terms, please contact us at [email protected]. If you have a question that is not addressed here, it may be included in our FAQs.

2. Eligibility

THE SITE IS ONLY FOR USE BY (A) BREWERIES WITH LICENSES TO MANUFACTURER AND SELL ALCOHOL TO RETAILERS WITHIN THE STATE OF CALIFORNIA, PURSUANT TO AN AGREEMENT BETWEEN BEERGANG AND A BREWERY AND (B) BUSINESSES LICENSED TO PURCHASE ALCOHOLIC BEVERAGE PRODUCTS DIRECTLY FROM SUCH MANUFACTURING BREWERIES. YOU MAY ONLY USE BEERGANG DURING SUCH TIME AS ANY AND ALL LICENSES AND PERMITS REQUIRED FOR THE OPERATION OF YOUR BUSINESS REMAIN IN GOOD STANDING, INCLUDING, WITHOUT LIMITATION, ANY PERMIT, LICENSE OR AUTHORIZATION ISSUED BY THE ALCOHOL AND TOBACCO TAX AND TRADE BUREAU (THE “TTB”), THE CALIFORNIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL (THE “ABC”), AND CALIFORNIA RESELLER’S PERMIT. ALL INDIVIDUAL USERS MUST BE AUTHORIZED REPRESENTATIVES OF THE FOREGOING PARTIES AND MUST BE 21 YEARS OF AGE AND OLDER.

3. What is Beergang?

Beergang’s Site is an online marketplace directory for licensed manufacturing breweries authorized to sell alcohol within the State of California (individually, a “Brewery” and, collectively, the “Breweries”) to list products available for sale to retailers, which eligible retailers (individually, a “Retailer” and, collectively, the “Retailers”) can use to search online for alcohol and other products available for sale by such licensed Breweries that use Beergang. Beergang then, as a delivery service on behalf of the applicable Brewery, may deliver purchased products to a Retailer within a manner permitted by law. Beergang does not sell, offer to sell or solicit sales of alcohol and is designed to work within the requirements of the three-tier system in effect in California. Beergang is not a distributor or wholesaler and does not employ any persons for the purpose of soliciting sales on behalf of any Brewery. Beergang and its representatives will not accept payments from Retailers using the Site with respect to their purchases from Breweries. Breweries are not authorized to use the Site for the purposes of facilitating the purchase of beer and other alcoholic beverages from any other Breweries.

Beergang reserves the right to change its Site and services, and the terms and scope of fees, at any time without notice, including to abide by applicable law and updates thereto.

Beergang and the Site is not meant to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler or distributor of alcohol beverages to any retailer of alcoholic beverages or to facilitate any improper exclusionary practices by any alcohol beverage licensee. When a Retailer searches for a product, the Site shows a Retailer its availability, price and other information based on your Retailer information and information provided by the Breweries that supply a Retailer; if a Retailer prefers, they may sort and filter results based on search criteria. Our Site and related services may be limited or not available at all in some places due to local law or other restrictions.

When a Retailer selects a product on Beergang, it is an offer to purchase from the Brewery that sells such product. The total purchase amount is shown on Beergang for convenience only, as each Brewery reviews each order and decides whether to accept it, which it can accept or reject for any reason. If the Brewery decides to accept an order, the Brewery will provide a separate invoice for the purchase amount. Beergang will provide estimated delivery times based on information made available by a Brewery. While Beergang will attempt to ensure delivery within an estimate window, delivery times and estimates are not guarantees. Beergang does not guarantee shipping or delivery times and is not liable for the actions, products, or content of Breweries or Retailers.

4. Account Registration

As a Retailer, you may register one account with Beergang. The information you provide must be accurate and complete, and you must keep it current. You are responsible for use of your account, so do not let anyone else use it. Keep your username and password confidential. If you suspect unauthorized activity notify [email protected] immediately.

If you wish to deactivate your account for any reason, send a request via email to [email protected]. If beergang wishes to deactivate your account for any reason, it may do so in its sole discretion without notice to you. Beergang may, but is not obligated to, reactivate an account upon written request.

5. License and Access

We grant each Retailer a limited, nonexclusive, non-transferable, non-sublicensable license to access the Site. You may use the Site only as permitted by these Terms and applicable law. All rights not expressly granted in these Terms are reserved. You may not (i) collect and use any product listings, descriptions, or prices, (ii) make any derivative use of the Site or its contents, (iii) download, copy, or otherwise use account information for the benefit of any third party, (iv) use data mining, robots, or similar data gathering and extraction tools; or otherwise misuse the Site. This license will terminate if you do not comply with these Terms.

To the extent any US Government users of the Site, we license the Site to such users as a "Commercial Item" as defined in 48 C.F.R. § 2.101), and the rights granted are the same as we grant to all others under these Terms.

6. Prices, taxes and fees

Breweries set the price of their products on Beergang, and Breweries may elect to charge Retailers additional fees, if permitted by law, such as shipping and delivery fees, keg deposits and use fees, redelivery fees, and restocking fees. All fees payable by a Retailer will be shown in an invoice from the applicable Brewery making a sale.

Each order, including delivery fees, is being processed in reliance upon the reseller permit information of a Retailer provided to Beergang being accurate, current and good standing. An order may be subject to tax. To the extent such permit is not in good standing, each Retailer agrees to indemnify Beergang and the Brewery for any loss or claim incurred as result of a claim by a governmental entity that a purchase is subject to tax, or other fine/penalty, due to the Retailer’s permit not being valid. When you use the Site, you may incur separate and additional charges by your wireless and internet provider(s).

7. Termination.

There is no commitment by any Brewery or Retailer to continue to use Beergang. A Brewery or Retailer may terminate the use of Beergang at any time by contacting Beergang at [email protected].

8. Changes to orders

If you wish to change an order for any reason after it has been placed, you may contact Beergang, but we cannot guarantee that changes will be accepted by the Brewery. If the changes are accepted, you will be responsible for any difference in charges and fees resulting from the change(s).

9. Deliver; ID verification; other safety checks

Any service by Beergang delivering products from a Brewery to a Retailer is made as a delivery service to the Brewery only and not as a service provider for the Retailer. No payment will be accepted by Beergang from a Retailer, including without limitation upon delivery of purchased products, nor will Beergang take possession of checks or other payment instruments from the Retailer made out to a Brewery. Upon delivery of a purchased product, Beegang may require a valid form of photo identification with birthdate and a signed acknowledgment confirming acceptance by a Retailer at the time of pick-up or delivery. If Beergang cannot verify the age or identity of a Retailer representative, if they appear intoxicated, if the situation is otherwise unsafe or inappropriate, or if delivery given the circumstances is otherwise prohibited by law or regulation, Beergang may refuse to furnish you with the products. Alcohol cannot be left unattended—someone 21 or older must be present to accept and sign for it.

If we believe that an order is fraudulent or unlawful, we may alert the Brewery and suspend the Retailer’s use of the Site.

10 Brewery right to refuse, cancel and adjust orders

A Brewery may refuse, cancel or adjust an order for any reason. If the product you want is not available, the Brewery or Beergang will notify you and offer a reasonable substitute or cancel your order. If you accept the substitution, the order total will be adjusted accordingly.

Breweries have the right to refuse sales to certain Retailers for any or no reason. Beergang also may, on occasion, establish applicable a delivery radius applicable to specified Breweries or otherwise refuse Retailers access to view products posted by certain Breweries. If a Brewery or Beergang policy prohibits a sale or delivery to a Retailer, Beergang will notify the Retailer and the Brewery will cancel the order.

If a delivery is attempted during an estimated delivery window and such delivery cannot be made despite an actual attempt by Beergang for any reason, the applicable Brewery may, to the extent permitted by law and in accordance with such Brewery’s policies, charge a restocking fee. Subsequent delivery attempts by Beergang or the Brewery will be made at the direction and discretion of the Brewery.

11. Errors, returns, refunds, and exchanges

Sometimes product information—such as images, descriptions, availability, pricing and reviews—contains errors. If a Brewery identifies such an error, the Brewery (or Beergang, on the Brewery’s behalf) will notify you and suggest a reasonable substitute. If you accept the substitute, the order total and your Beergang account will be adjusted accordingly.

If a Retailer receive a product that is not as described (or that it did not order), contact Beergang and the Brewery within two business days following receipt. The Retailer’s sole remedy is to notify the Brewery and Beergang. If the product has not been used, the Brewery will in its sole discretion either allow a return of the unused product (within the time period specified by the Brewery) for a refund or provide you with a reasonable substitute. If you accept the substitution, the order total will be adjusted accordingly. Beergang may contact you on behalf of the Brewery to facilitate the foregoing.

The laws applicable in the jurisdictions of the Breweries and Retailers may also determine whether a return, refund or exchange is available.

12. Privacy and communications

Use of the Site is also subject to our Privacy Policy. When you use the Site or send e-mails, text messages, or other communications from your desktop or mobile device to Beergang, you may be communicating with us electronically. You consent to receive electronic communications from us, and you agree that such electronic communications satisfy any legal requirement that a document be in writing.

13. Beergang ownership of the Site and Beergang Trademarks

All Beergang graphics, logos, designs, trademarks, service marks, service names, and trade dress are the sole property of Beergang, and may be subject to state and/or federal U.S. protection and that of other countries. Beergang’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Beergang.

14. Content you provide

From time to time, the Site may permit Retailers to post reviews, comments, photos, videos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, if the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious or objectionable to us or others, and does not contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content. We do not regularly review posted content, but we do reserve the right to remove or edit such content. We may use this content for any purpose, without restrictions, and without notice or compensation, and you grant us a perpetual, royalty-free, irrevocable, sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You also grant us the right to use the name you submit in connection with such content.

When you post content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the content on the Site. By posting content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to beergang revocable, non-exclusive, transferable, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, translate, and distribute such content for the purposes of performing Beergang’s services and Site. Beergang does not assert any ownership over your content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your content and any intellectual property rights or other proprietary rights associated with your content.

15. Third party offerings

Beergang does not examine, warrant or endorse any third party sites and apps to which the Site links, and is not liable for your use of them.

16. Disclaimer of warranties

USE OF THE SITE IS AT YOUR OWN RISK. THE SITE AND EVERYTHING RELATED TO IT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL SALES ARE MADE BY BREWERIES AND BEERGANG MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO SUCH TRANSACTIONS, SUCH AS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY BEERGANG OR ITS AUTHORIZED AGENT OR REPRESENTATIVE WILL BE DEEMED TO CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. BEERGANG MAKES NO REPRESENTATION OR WARRANTY AS TO WHETHER THE LEGALITY OF TRANSACTIONS BETWEEN BREWERIES AND RETAILERS IN ASSOCIATION WITH THE SITE.

17. Limitation of liability

BEERGANG IS NOT LIABLE FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE USE OF THE SITE, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF USE, DATA OR PROFITS OR ANY OTHER DAMAGES OR LOSSES OF ANY KIND. BEERGANG IS NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, ILLEGAL OR OTHER CONDUCT OF ANY BREWERY, RETAILER, ADVERTISER, OR OTHER USER OF THE SITE. NEITHER BEERGANG NOR ANY BREWERY IS LIABLE FOR ANY DAMAGES CAUSED BY WEATHER CONDITIONS AND OTHER “ACTS OF GOD,” SUCH AS UNFORESEEABLE DELAYS OR ACCIDENTS, PANDEMICS, PUBLIC UNREST, CONFISCATION AND NATURAL DISASTERS.

If an arbitrator or a court finds Beergang liable for damages notwithstanding the foregoing, Beergang’s total liability for all damages shall not exceed the amount paid by a Brewery to Beergang for its use of the Site and related services with respect to the Retailer order(s) directly related to the claim.

18. Copyright dispute policy

Please review our Copyright Dispute Policy to report potentially infringing content to us.

19. Updates

We may update these Terms at any time. Updates are effective as of the “Last updated” date at the end of these Terms. Your use of the Site after an update is your acceptance of the updated Terms. If any part of the Terms are found invalid, void, or unenforceable, that part shall be severed and not affect any remaining term or condition.

20. Dispute resolution

ANY DISPUTE OR CLAIM RELATING TO THE SITE OR THESE TERMS MUST BE RESOLVED WITH BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT. CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF THE EVENTS GIVING RISE TO THEM, AND ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THERE IS NO JUDGE OR JURY IN ARBITRATION. AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES) AND MUST FOLLOW THESE TERMS AS A COURT WOULD. COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

To begin the dispute resolution process, notify Beergang of your claim by sending an email to [email protected]. You must include: (a) a description of your claim or dispute; (b) the specific relief you want; and (c) your name, address and contact information. If the claim is not resolved within 30 days of your notice, you or Beergang may begin formal arbitration. If we intend to begin arbitration, we will notify you in writing using the contact information you provide.

Judicate West ("JW") will conduct the arbitration pursuant in accordance with the JW Commercial Arbitration Rules, by a sole arbitrator from JW. The venue for the arbitration shall be Orange County, California. The arbitration hearing shall commence within 120 days of the appointment of the arbitrator. All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration clause, but these Terms bind the arbitrator. JW’s rules govern filing, administrative and arbitrator fees. The cost of the impartial arbitrator, stenographer, and meeting site shall be equally divided between the parties. Any party who has failed or refuses to tender its share of the costs comply as prescribed in this section within 14 days of the appointment of the arbitrator shall be considered to be in default.

Any party considered to be in default pursuant to this subsection shall have waived any and all rights the party would have had in the arbitration and shall be considered to have consented to the determination of the arbitration. The parties hereto expressly waive any trial by jury. In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages and the parties waive any right to recover any such damages. Any award made by the arbitrator shall be final and binding upon the parties and judgment thereon may be entered in any court of competent jurisdiction. The arbitration award shall be enforceable under California Code of Civil Procedure Section 1285, et. seq. There shall be no appeal of the award. Either party may serve any notice, process, motion or other document in connection with an arbitration award either by personal service upon a party or by certified or registered mail or overnight delivery service to the respective addresses set forth in their records with Beergang. The parties shall treat any and all communications, discussions and negotiations made in furtherance of the arbitration as confidential. The parties shall also maintain the confidential nature of the arbitration proceeding unless otherwise required by law or judicial decision. Notwithstanding the foregoing, the parties shall have the right to seek provisional remedies under California Code of Civil Procedure 1281.8.

21. Applicable Law

The laws of the State of California, excluding its conflicts of law rules, govern these Terms to the extent not preempted by The Federal Arbitration Act. The state and federal courts located in the County of Orange, California shall have jurisdiction over all claims or disputes that are not subject to arbitration. Solicitations, offers, advertisements and communications are void where prohibited.

You must comply with any local, state or national laws applicable to your use of the Site, such as rules and regulations regarding the sale, service, transportation, import, shipment or delivery of alcoholic beverages. You must comply with all applicable U.S. or other export and re-export restrictions.

22. Communications Decency Act

Parental control protections (such as computer hardware, software, or filtering services) may help you limit access to material on the Internet that may be harmful to minors. Such tools are available for purchase online. We have not tested or evaluated these tools and cannot attest to their quality.

Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act (“DMCA”), Beergang, Inc. (“Beergang”) has adopted and implemented this copyright dispute policy (“Copyright Dispute Policy”) that provides for the termination in appropriate circumstances of users of Beergang’s website (beergang.beer) and any subdomains of the website (the “Website”), or any Beergang mobile application (“App”), who are repeat infringers. Beergang may terminate access for users who are found repeatedly to provide or post protected third party content without necessary rights and permissions, including content on our social media properties. To learn more about the DMCA, click here: https://www.copyright.gov/legislation/dmca.pdf

DMCA Take-Down Notices

If you are a copyright owner or an agent thereof and believe, in good faith, that any materials on the Website or App infringe upon your copyrights, you may submit a notification pursuant to the DMCA by sending the following information in writing to Beergang’s designated copyright agent at [email protected]

1. The date of your notification;

2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

3. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that site;

4. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;

5. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;

6. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

7. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Counter-Notices

If you believe that your content that has been removed from the Website or App is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content on the Website or App, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:

1. Your physical or electronic signature;

2. A description of the content that has been removed and the location at which the content appeared before it was removed;

3. A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and

4. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court for the judicial district in which your permanent address is, or, if your permanent address is outside the United States, for any judicial district in which Beergang is located and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Beergang copyright agent, Beergang may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in Beergang’s discretion) be reinstated on the Website and App in 10 to 14 business days or more after receipt of the counter-notice.

This Copyright Dispute Policy was last modified on August 28, 2020.