Spirits Capital Corporation Privacy Policy

Last updated October 16, 2024

[SPIRITS CAPITAL] TERMS OF SERVICE

Thank you for your interest in Spirits Capital!

DBFEX is a premium whiskey and spirits marketplace located at 100 Bayview Circle Newport Beach, CA 92660 (the “Site”) for [global traders, suppliers, and distilleries looking to buy and sell whiskey barrels and other spirits using our digital marketplace platform] (the “Service(s)”). The Service is owned, and operated by[Spirits Capital Corporation (“Spirits Capital,” “we,” “our,” or “us”). The generic terms “you,” “your,” and “yours” refer to all users of the Service irrespective of whether offering to sell, selling, browsing or buying barrels of whiskey or other spirits (the “Merchandise”). The term “seller” specifically refers to users offering to sell their Merchandise, and the term “buyer” specifically refers to users buying the Merchandise, through the Service.

IMPORTANT – PLEASE READ CAREFULLY: THESE SPIRITS CAPITAL TERMS OF SERVICE CONSISTING OF THE GENERAL TERMS AND CONDITIONS, SELLING ON SPIRITS CAPITAL TERMS AND CONDITIONS AND BUYING ON SPIRITS CAPITAL TERMS AND CONDITIONS (COLLECTIVELY, THE “TERMS”) ALONG WITH ALL THE RULES, POLICIES AND GUIDELINES INCORPORATED IN THESE TERMS BY REFERENCE CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN SPIRITS CAPITAL AND YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND GOVERN YOUR USE OF THE SERVICE TO LIST, SELL, OFFER TO SELL OR PURCHASE THE MERCHANDISE. BY REGISTERING TO OPEN AN ACCOUNT AND/OR USING THE SERVICE, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS OR ENTITY YOU REPRESENT) AGREE AND ACKNOWLEDGE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, PLEASE DO NOT USE THE SERVICE.

WE RESERVE THE RIGHT TO MODIFY THESE TERMS AT ANY TIME, AND EACH SUCH MODIFICATION SHALL BE EFFECTIVE UPON POSTING. ALL MATERIAL MODIFICATIONS WILL APPLY PROSPECTIVELY ONLY. YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY SUCH MODIFICATION CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TERMS, AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE. THEREFORE, IT IS IMPORTANT FOR YOU TO REVIEW THESE TERMS REGULARLY.

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions are a part of the Spirits Capital Terms of Service and apply to all users of the Service, whether offering to sell, selling, browsing or buying Merchandise through the Service.

Eligibility

To use the Service, you must be able to enter into a binding contract under the applicable laws. If you are an individual, you represent that you are 18 years of age or over, or of the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years. If you are accepting these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms.

Registration

You are required to register and create a unique, password-protected account (“your account”) in order to access and use the Service to offer, sell or buy Merchandise. You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. You authorize us to use any information you provide us (including your SSN, TIN or EIN) for internal business purposes, including but not limited to validate your know-your-customer (KYC) details before opening your account, and from time to time. We reserve the right to reject your application or delete your account without warning if you are found to have misrepresented your registration information or you fail to meet our eligibility criteria.

You are responsible for maintaining the confidentiality of your account user name and password. You agree to (a) immediately notify us of any unauthorized use of your password or account, or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You will be solely responsible for safeguarding your password and also for any actions under your password and account, whether authorized by you or not.

Acceptable Use Policy

Subject to your acceptance and compliance with these Terms, we hereby grant you permission to access and use the Service, provided that you shall not (and not allow third party to): (i) lead off the Site to complete transactions in any manner including through links in emails, chat or phone correspondence with users; (ii) modify, adapt, translate, or reverse engineer any portion of the Service or the Site; (iii) remove any copyright, trademark or other proprietary rights notices contained in or on the Site or Service or in or on any content or other material obtained via the Site or Service; (iv) use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Service; (v) access, retrieve or index any portion of the Service for purposes of constructing or populating a searchable database of business reviews; (vi) collect or harvest any information about other users or members (including usernames and/or email addresses) for any purpose; (vii) reformat or frame any portion of the web pages that are part of the Site; (viii) create user accounts by automated means or under false or fraudulent pretenses; (ix) create or transmit unwanted electronic communications such as “spam” to other users or members of the Service or otherwise interfere with other users’ or members’ enjoyment of the Service; (x) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (xi) use the Service to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (xii) copy or store any content offered on the Site for other than your own personal use; (xiii) use any device, software or routine that interferes with the proper working of the Service, or otherwise attempt to interfere with the proper working of the Service; (xiv) take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure; (xv) use the Service intentionally or unintentionally, to violate any applicable local, state, national or international law; or (xv) collect or store personal data about other users in connection with the prohibited activities described in this paragraph.

Spirits Capital Role and Release

The Service is an online marketplace for third-party sellers and buyers to sell and buy Merchandise subject to these Terms. We are neither a seller nor a buyer. As a seller, you may list any permitted items of Merchandise on the Site and, as a buyer, you may buy any product or service offered by the sellers. Therefore, if you have a dispute with a seller or a buyer, you release us, our affiliates (and our respective officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. For example, IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “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.”

We are not responsible in any way for actual transactions between a seller and a buyer. Without limiting the generality of the foregoing, you acknowledge and agree as follows: (i) we do not participate in any actual transactions, including, without limitation, negotiations, discussions, or proposals, and you expressly waive any requirement that purports to impose on us an obligation to perform any services other than those expressly undertaken by us; (ii) we do not render legal, brokerage, scientific or other professional advice or services; in the event you desire or need such services, we strongly advise you to secure the same; (iii) we are not undertaking any, and have no, duties to you including, without limitation, the obligation to screen prospective sellers or buyers; and (iv) while we comply with applicable state and federal laws, we cannot guarantee that our users so comply. Accordingly, we assume no liability for any user’s failures to comply with such laws.

Subscription Fees

For providing the Services on the Site, we reserve the right to charge users of the Site a subscription fees payable from time to time (the “Subscription Fees”). Subscription Fees may be paid at the time of sign up, for the entire Subscription Period (as defined below), or as agreed between the parties at the time of sign up/ renewal. The minimum subscription period for the Services is twelve (12) months, and may be renewed for successive twelve (12)-month periods thereof (the “Subscription Period”). Subscription Fees paid is non-refundable, and subscriptions cancelled during the Subscription Period would result in any Subscription Fees already paid to be forfeited. If you cancel prior to the end of the relevant Subscription Period, the entire amount for the remaining period of the Subscription Period will be due and payable to us.

Dwolla

In order to use the payment functionality of Spirits Capital Corporation’s application, you must open a “Dwolla Account” provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla’s financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize us to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through our application, and Dwolla account notifications will be sent by us, not Dwolla. We will provide customer support for your Dwolla Account activity, and can be reached at https://dbfex.com/contact-us, support@dbfex.com or +1 (888) 568-8875.

Intellectual Property Rights

Unless otherwise indicated, the Site is our proprietary property and all underlying intellectual property, source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions.

The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.

Except as expressly and specifically set forth in the Terms, nothing herein shall be construed as granting to you any property right, by license, implication, estoppel, or otherwise, to any of our intellectual property rights.

Spirits Capital and its associated logos are either registered trademarks or trademarks of ours. All other company names, logos and other identifying marks that may be listed as part of our Service may be trademarks of their respective owners. WE DO NOT CLAIM ANY OWNERSHIP IN ANY THIRD PARTY’S TRADEMARKS NOR DO WE CLAIM ANY SPONSORSHIP, ASSOCIATION WITH OR ENDORSEMENT BY SUCH THIRD PARTIES.

Your Content

We may allow you to post reviews, comments, photos, and other content; send communications; and submit suggestions, ideas, comments, questions, or other information (“your content”) on the Site. You are solely responsible for your content. Subject to the licenses you are granting hereunder, you retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to your content.

By submitting, posting or displaying your content on or through the Site, you automatically grant to us a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sub-licensable and transferable right and license to use, reproduce, store, host, index, cache, distribute (through multiple tiers), publicly perform, publicly display, (each of the foregoing in any form, medium or technology now known or later developed), modify and adapt including without limitation the right to adapt for streaming, downloading, broadcasting, distribution, publicly displaying, publicly performing (each of the foregoing in any form, medium or technology now known or later developed), create derivative works from, and exercise all aforesaid rights with respect to such derivative works, and otherwise exploit in any manner, your content or any part thereof. You hereby expressly waive any and all so-called moral rights you may have in your content.

You hereby represent and warrant that your content, (i) and our use thereof pursuant to these Terms does not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right, (ii) does not contain any material that is sexual, pornographic, erotic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts, (iii) is not fraudulent, misleading, hateful, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening, profane, vulgar or obscene, (iv) does not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age, or otherwise interfere with another party’s use of the Service, (v) does not promote illegal or harmful activities or substances or provide instructional information about activities such as making or buying illegal weapons or substances, (vi) is not illegal, unlawful or contrary to the laws or regulations in any state or country where, as applicable, your content are created, displayed or accessed, (vii) does not contain any adware, malware, spyware, computer programming routines, software or viruses that are intended to damage, interfere with or in any way limit the functionality of any computer software or hardware or telecommunications equipment, intercept or expropriate any system data or personal information, permit unauthorized access to the Service or any part thereof or disable, damage or erase any portion of the content or advertisements processed or stored therein; or (viii) does not constitute unsolicited bulk email, junk mail, spam or chain letters.

Merchandise

You are only allowed to list, offer and sell Merchandise through the Service. We reserve the right to determine whether your products or services qualify for offering through the Service. Without limiting the foregoing, following products are expressly prohibited from being listed through the Service: (a) offensive materials, including material that incites racial hatred or promotes discrimination based on race, sex, religion, national origin, physical ability, sexual orientation or age; (b) obscene materials including pornographic material; (c) live animals; (d) tobacco products; (e) firearms and ammunition; (f) stolen goods; (g) advertisements; (h) illegal or prescription drugs; (i) items whose sale, distribution or offering for sale is prohibited by any applicable law; (j) offensive weapons, poisons and dangerous substances (as defined by the applicable law or laws).

Disclaimer of Warranties

THE SITE, THE SERVICE AND ALL FEATURES AND FUNCTIONALITIES ASSOCIATED THEREWITH ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE DISCRETION AND RISK. YOU ACKNOWLEDGE AND AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH THE USE OF THE SERVICE AND PURCHASE AND SALE OF MERCHANDISE, AND ANY CONTENT DESCRIBING THE MERCHANDISE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF SUCH CONTENT.

TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT WE MAY ELIMINATE OR OTHERWISE MODIFY ANY OR ALL ASPECTS OF THE SERVICE, INCLUDING ANY FEATURES THEREOF, WITHOUT COMPENSATION OR NOTICE TO YOU. WE MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SERVICE OR THAT YOUR USE OF THE SERVICE WILL BE FREE FROM INTERRUPTION, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION AND WE DISCLAIM ANY LIABILITY WITH RESPECT THERETO. NO STATEMENT OF OURS OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NOTE: CERTAIN APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Limitation of Liability

You understand and agree that your use of the Marketplace is at your own discretion and risk and that you will be solely responsible for any damages that arise from such use including, without limitation, for loss of data and or any type of malfunction to your computer. IN NO EVENT SHALL WE OR ANY OF OUR SHAREHOLDERS, DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSS, WHETHER OR NOT FORSEEABLE AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR PERFORMANCE OF THE SERVICE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE FOR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SERVICE (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF (A) THE COMMISSION EARNED BY US FROM THE TRANSACTION GIVING RISE TO THE CLAIM, OR (B) [$500.00]. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of the Site; (3) breach of these Terms; (4) any breach of your representations and warranties set forth in these Terms; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Site with whom you connected via the Site.

Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

Basis of the Bargain

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON INDEMNIFICATION, WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

Privacy

All information we collect on the Site is subject to our Privacy Policy located at https://dbfex.com/privacy. By using the Service, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. We reserve the right to send notifications and updates about the Service and as a user of the Service, you can opt out of receiving such messages in accordance with the Privacy Policy.

You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any order information or other data or personal information acquired by you or your affiliates from us as a result of your use of the Service or the transactions contemplated hereby, except as necessary for you to perform your obligations, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information.

Please be advised the Site is hosted in the United States.

If you access the Site from the European Economic Area, United Kingdom, Switzerland, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.

Anonymous Data Collection

We shall have the right to utilize data capture, syndication, analysis tools, and other similar tools to extract, compile, synthesize, and analyze any non-personally identifiable data or information resulting from your use of the Service (“anonymous data”). To the extent that any anonymous data is collected by us, such data shall be solely owned by us and may be used by us for any lawful business purpose without a duty of accounting to you therefor; provided, that the anonymous data is used only in an aggregated form, without specifically identifying the source of the anonymous data.

Compliance with Applicable Law

As a buyer and/ or seller on the Site, you acknowledge that you are responsible for compliance with applicable law including but not limited to any federal, state or local statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any governmental entity, applicable in or to such sale/ purchase transactions in your jurisdiction, including but not limited to relating to the sale and purchase of alcoholic products. We are not responsible for your compliance with applicable law in relation to the purchase and/ or sale of the goods listed on the Site, and none of the content displayed on the Site shall be construed to constitute legal advice. Please seek appropriate professional advice in relation to your use of the Service, the transactions contemplated hereby, and as necessary for you to perform your obligations hereunder. You further acknowledge that the Merchandise has not been tested by Spirits Capital for safety and efficacy in food, beverage, drug, commercial or any other use. You expressly represent and warrant to Spirits Capital that you will properly use, and market any Merchandise purchased through the Service and/or materials produced with such Merchandise in accordance with all applicable laws and regulations, now and hereinafter enacted.

Term and Termination

These Terms shall remain in full force and effect while you use the Site.

WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS AND CONDITIONS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.

In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

Modifications and Interruptions

We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site except as may be required by applicable law. We also reserve the right to modify or discontinue all or part of the Site without notice at any time.

We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site.

We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors.

We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site.

Nothing in these Terms and Conditions will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.

Governing Law

These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is excluded and does not apply to these Terms.

Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY; AND (4) APPEAL RIGHTS WILL BE LIMITED.

If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Spirits Capital agree that you and we will resolve any claim or controversy at law or equity that arises out of these Terms, the Site, or our Services (a “Claim”) in accordance with one of the subsections below:

(i) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any person who uses your account, and us, our affiliates, and/or agents, if it relates to your account, your use of the Site, or to these Terms, except as noted hereafter.

(ii) Either party may assert an individual case in small claims court or your state’s equivalent court. Any disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. Nothing in this Section shall limit either party from seeking injunctive or other exigent relief from a court of law.

Notwithstanding any other language in this Section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section of these Terms. However, any dispute or argument that concerns the validity or enforceability of these Terms as a whole is for the arbitrator, not a court, to decide. Further, you and we may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER USER OR PERSON NOT ON YOUR ACCOUNT.

The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be mailed to

100 Bayview Circle, Suite 4100
Newport Beach, CA 92660

The arbitration shall be administrated by the Orange County, California offices of JAMS and the arbitration shall be conducted under the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”) that are in effect at the time the arbitration is initiated. The JAMS Rules can be accessed at http://www.jamsadr.com/rules-streamlined-arbitration/. In the event of a conflict between the terms set forth in this Section and the JAMS Rules, the terms in this Section will control. The arbitrator must apply the same law and legal principles, consistent with the FAA, which would apply in court, but may use different procedural rules.

If for any reason, a dispute proceeds in court rather than arbitration, the dispute shall be commenced or prosecuted exclusively in the state and federal courts located in Orange County, California, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and inconvenient forum with respect to venue and jurisdiction in such state and federal courts.

No Waiver

The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

Severability

If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of these Terms will remain in full force and effect.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral.

Electronic communications, transactions, and signatures

Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing.

YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE.

You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

Assignment

We may assign any or all of our rights and obligations to others at any time.

II. SELLING ON SPIRITS CAPITAL TERMS AND CONDITIONS

These Selling on Spirits Capital Terms and Conditions are a part of the Spirits Capital Terms of Service and apply to all sellers using the Service in addition to the General Terms and Conditions.

Merchandise Listing

After you have set up your account, we will enable you to list your Merchandise on the Site to offer for sale and sell through the Service. We may enable you to list your Merchandise on a sub-Site that lists solely your Merchandise, or lists that specific item of Merchandise offered by various sellers, that you wish to offer for sale and sell through the Service. As a seller, you will be responsible for providing true, accurate and complete information and for promptly updating that information, as necessary, to ensure it at all times remains true, accurate and complete. Your listing on the Site constitutes an offer to buy your Merchandise, and placing of an order by a buyer constitutes acceptance and formation of a contract, subject to the terms and conditions contained herein or such other terms and conditions as you may agree with a buyer.

Order Processing and Collection of Sales Proceeds

For each item of your Merchandise sold through the Service, we will make available to you the Order Information (as defined below) received by us. You agree that we have exclusive rights to collect all sales proceeds from the buyers including the applicable taxes, and other charges determined by you. “Order Information” means, with respect to any item of your Merchandise sold through the Service, the following information: the name of the customer, customer email addresses, the name of the recipient, the buyer’s payment information/ bank account details (as applicable), the shipping address and the quantity to be shipped.

Sale and Fulfillment

You will: (a) source, offer, sell and fulfill each order placed by a buyer for your Merchandise, in each case in accordance with the terms of the applicable Order Information, these Terms, all terms provided by you and displayed on the Site at the time of the order, and shipping terms agreed between you and the buyer (as applicable), and be solely responsible for and bear all risk for those activities; (b) package each item of your Merchandise in a commercially reasonable manner and ship as per the shipment terms between you and the buyer (as applicable); (c) include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of your Merchandise; (d) identify yourself as the seller of your Merchandise on all packing slips or other information included or provided in connection with your Merchandise and as the person to which a customer may return the applicable product; (e) only cancel the orders permitted under these Terms or your terms and conditions appearing on the Site at the time of the applicable order; (f) provide to us information regarding fulfillment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available.

Cancellations, Returns and Refunds

We (Spirits Capital) do not accept returns on your behalf. You agree to post your returns and refunds policy on the Site. For your Merchandise, you will accept and process cancellations, returns, refunds and adjustments in accordance with your refunds and returns policies displayed on the Site at the time of the order. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to buyers in connection with cancelled orders. You will route all payments to buyers in connection with cancelled orders through Spirits Capital. We will provide those payments to the buyer, and you will reimburse us for all amounts we pay. You will promptly provide refunds and adjustments that you are obligated to provide under these Terms and as required by Law, and in no case later than thirty (30) days after the obligation arises.

Delivery Errors and Recalls

You are solely responsible for any non-performance, non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment of each order for your Merchandise, except to the extent caused by: our failure to make available to you Order Information as it was received by us. You will notify us promptly as soon as you have knowledge of any public or private recalls of your Merchandise.

Parity with Your Other Sales Channels

[Parity with Your Other Sales Channels

You are free to determine which of your Merchandise you wish to offer through the Service. You will maintain parity between the products you offer through other sales channels you use and the products you list on the Site by ensuring that : (a) the purchase price and every other term of offer or sale of your Merchandise (including associated shipping and handling charges, shipment information, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable cancellation, return and refund policies) is at least as favorable to the Site users as the most favorable terms upon which a product is offered or sold via other sales channels; (b) customer service for your Merchandise is at least as responsive and available and offers at least the same level of support as the most favorable customer services offered in connection with any of other sales channels; and (c) your content, product and service information and other information regarding your Merchandise that you provide on the Site is of at least the same level of quality as the highest quality information displayed or used in other sales channels. If you become aware of any non-compliance with (a) above, you will promptly compensate adversely affected customers by making appropriate refunds to them in accordance with these Terms.]

Referral Fees

You will pay us [ten percent (10%)] of the gross sales proceeds [(including handling and other charges)] collected by us for all sales transactions involving your Merchandise through the Service (the “Referral Fees”), in addition to the Subscription Fees.

Remittance of Sales Proceeds and Escrow

[Except as otherwise stated in these Terms, we will remit to you, on a monthly basis, any sales proceeds processed by us from sales transactions involving your Merchandise through the Service, less: (a) the Referral Fees, and (b) any other applicable fees described in these Terms. You bear the risk of credit card fraud or loss.] Such amounts received by us from buyers shall be held in escrow until disbursed, and you acknowledge that no interest whatsoever shall accrue or is payable on such amounts.

Seller Taxes

You agree that it is your responsibility to determine whether Seller Taxes (as defined below) apply to the sales transactions involving your Merchandise and to notify us. If applicable, we will collect the Seller Taxes from the buyers and pass on the amount to you. However, you will be responsible for reporting and remitting the correct Seller Taxes to the appropriate tax authority. “Seller Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.

Ratings

We may use mechanisms that rate, or allow buyers to rate, your Merchandise and your performance as a seller. We may make these ratings and feedback publicly available.

Control of Site

We have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Site, including by redesigning, modifying, removing or restricting access to any of them, and by suspending, prohibiting or removing any listing.

III. BUYING ON SPIRITS CAPITAL TERMS AND CONDITIONS

These Buying on Spirits Capital Terms and Conditions are a part of the Spirits Capital Terms of Service and apply to all buyers using the Service in addition to the General Terms and Conditions.

Purchasing Merchandise

You can place orders for sellers’ Merchandise offered through the Service by following the instructions on the Site. Sellers’ listing on the Site constitutes an offer to you to buy their Merchandise. Placing of an order by you constitutes acceptance and formation of a contract. Please carefully read these Terms and any special terms and conditions including seller’s returns and refunds policy before placing an order. Please note that your purchases are charged at the time you place your order. We shall not be parties to any contract between you and the seller and are not responsible for any act or omission by either party that may be in violation of such a contract. Without limiting the foregoing, we are not responsible for timely performance by either party of its obligations or failure of any representations or warranties made by either party under such a contract or for any defects in Merchandise supplied by the sellers. If an item of Merchandise is listed at an incorrect price or with incorrect information due to a typographical error or error in pricing or product information received from a seller, we have the right to refuse or cancel any orders placed for such products or services, whether or not you have placed the order or have been charged.

Merchandise Descriptions and Accuracy thereof

While we conduct limited verification via email/ telephonic verification to confirm that the description of the Merchandise is accurate, the quantities listed are correct, and any other content on the Site is true, correct and accurate, we do not warrant, and hereby explicitly disclaim any responsibility and obligation to ensure that the Merchandise descriptions/ quantity and other content on the Site is accurate, complete, reliable, current or error free. The seller is solely responsible for ensuring accuracy of the same, and is solely liable for any inaccuracies or loss resulting thereby. We recommend you undertake appropriate steps to conduct independent diligence on the seller/ the Merchandise prior to placing an order. If an item of Merchandise offered on the Site is not as described, your sole remedy is to contact the seller, and notify us of the same for our internal quality maintenance purposes only.

Changes to Orders

Once submitted, any change(s) to your order(s) may be made only with our advance written approval and such changes may require different terms, including a change in the price and/or time of delivery. Once submitted, you may not cancel any order unless cancellation is expressly approved by us in writing, which approval may be contingent on your payment of seller’s costs or other charges, including, but not limited to, shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed by seller, and any other costs resulting from cancellation. We reserve the right to cancel any order, in whole or in part, upon your breach of these Terms or your bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading us to reasonably question your willingness or ability to perform.

Delivery

We do not process deliveries of Merchandise purchased/ sold on our platform. If an order contemplates delivery of Merchandise, such orders will be subject to such shipping terms as may be agreed between the buyer(s) and the seller(s). Immediately upon your receipt of any Merchandise shipped hereunder, you shall inspect the same and shall notify the seller in writing of any claims for shortages, defects or damages and shall hold such Merchandise for the seller’s instructions concerning disposition. It is your responsibility to notify the seller within the time period, and according to their shipping terms, and we are not responsible or liable for any shortages, defects, damages, or non-conformity.

Delays

Any specified delivery dates are estimates only and do not represent a promise by us or seller to deliver the ordered Merchandise on that date. We shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder. If, for reasons other than force majeure, seller should default or delay or not deliver the ordered Merchandise, your sole remedy against the seller is an option to cancel your purchase order, through prior written notice to us.

Returns and Further Sale

We do not process, control or undertake to complete and return transactions. In case you wish to return any of the Merchandise, you may reach out to the seller(s), and place any such requests with them, subject to seller’s terms and conditions. We also do not undertake or track any return shipments, and you are responsible to comply with the terms set out by the seller.