DEPOSIT AND CANCELLATION POLICY

We generally accept a 70% deposit for special order and backordered items. The deposit amount may vary depending on the specific situation. You are contracting with us to provide you equipment and we are expending time, effort, and money to fulfill our obligation to you, not to mention foregoing potential sales to other customers by reserving and holding equipment for you.

Our goal is to best meet your needs while protecting our business from costs that are incurred when a customer cancels or substantially delays their order. We strive to minimize these costs, but all parties recognize that there are potential costs and that STOUT TANKS AND KETTLES, LLC, an Oregon limited liability company ("STOUT") is allowed to recover reasonable costs that we incur when we accept your order in good faith and it is subsequently canceled or substantially delayed for reason’s outside of STOUT’s control.

When your item is completed (or near completion) and we are ready to ship it, we will contact you and request the balance due plus shipping costs. Please pay this amount at your earliest convenience so we can send your item to you. If you do not pay the remaining amount due within 30 days after we notify you that the remaining balance is due, we may elect to treat the order as though you have canceled it.

If you cancel your order prior to delivery, we will do our best to mitigate our costs and as a result, minimize the amount of deposit applied to the canceled item(s). In cases of cancellation, we may, in our complete discretion, elect to retain a portion, up to and including the entire deposit of 70% of the purchase price of your equipment to cover our direct and indirect costs associated with manufacturing, shipping, storing and remarketing your equipment on your behalf.  Refund of your deposit may take up to 90 days to calculate our direct and indirect costs associated with your cancellation.   Highly custom items or items that are not our normal production items may have higher cancellation costs, including up to the full amount of the deposit if we cannot recoup or reduce our costs.

Items shipped direct from our factories or suppliers to you may not be delayed or canceled without our prior written permission.  

Sometimes orders are canceled due to loss of a lease or financing, or other contingency beyond your control.  In those situations, STOUT  may, in our complete discretion, offer to credit back up to 50%  of the cancellation costs or restocking fee if and when you re-order a comparable set of equipment from us.

LEAD TIME AND DELIVERY

Please note that lead times are estimates and are based on current orders and backlog. Due to the many factors involved in the sourcing, manufacture and shipping of the equipment on an order, STOUT cannot guarantee a specific delivery date. We can only provide an estimated shipping time frame. Actual shipping time frames may vary considerably due to global shipping conditions and other factors outside of STOUT’s control. Equipment is reserved on a first-come-first served basis, and someone else could secure some or all of the quoted equipment if they send a deposit before you do.

Placing a deposit will reserve the equipment in your name. After we receive your deposit and confirm the technical details with you, we will then send you a summary of the expected shipping time frame.

STOUT generally ships within a couple of weeks plus or minus of our estimated shipping times. Shipping times or time-frames are not guaranteed, but we try to be realistic when estimating availability.

STORAGE

When shipping goods over land or overseas, there is the possibility that customer caused disruptions may result in additional storage costs, redelivery fees, container use fees, port storage fees, and so on. Many of these costs are not controlled by STOUT – they are determined by the various entities we work with to get your equipment to you, such as steam ship lines, trucking/freight companies, governments, ports, and so on. An example of a “customer caused disruption” could be refusal to take delivery in a timely manner, failure to make the final payment due, and so on. STOUT will add such costs to the customer’s final invoice and delivery will generally be withheld until such final payment is made. In the event of a substantial customer delay, STOUT may invoice you monthly for reasonable storage fees for our warehouse space.

RESTOCKING

All sales are final.  STOUT may, in its discretion, allow returns or exchanges of certain items from time to time.  Returned or exchanged items are subject to a minimum 20% restocking fee plus actual costs to repackage/re-crate the equipment for resale.  Special order or custom items are subject to higher restocking fees. 

WARRANTY

STOUT warrants that our "Products" (defined below) will be free from Material Defects (defined below) in materials and workmanship for two (2) years from date of shipment.  A “Material Defect” is a defect or problem that has a significant adverse impact on the usability, safety, function or value of the Product for its intended purpose.  Our Products are hand-crafted. As such, there may be minor imperfections or variances from the specifications. These minor issues will not be considered to be defects for the purposes of this warranty as long as they do not materially impact the functionality of the equipment.

In case of Material Defects, we will, at our option, repair or replace the Product or the defective component, provided the product has been fully paid for.  You must contact us and provide us with the necessary details so we can determine the best course of action prior to returning your Product. All returns must be authorized in advance. We may elect to have your item repaired locally by a reputable stainless steel welder. You are responsible to make the Product available for repair, packaging, or pickup within a reasonable amount of time. For items that we elect to replace, we will do our best to ensure the fastest possible replacement, but it may take several months to have your item replaced due to manufacturing and shipping lead times. We are not responsible for costs due to delays in replacing your Product.

THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED WARRANTIES. OUR LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO THE REPAIR AND REPLACEMENT OF PRODUCTS AS SET FORTH ABOVE. THE LIABILITY OF STOUT UNDER ANY OTHER CLAIM, THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE, RECKLESSNESS OR PRODUCT LIABILITY) WITH RESPECT TO ANY OF THE PRODUCTS DELIVERED SHALL BE LIMITED TO THE PURCHASE PRICE. STOUT SHALL NOT IN ANY EVENT BE LIABLE FOR ANY LOST PROFITS, LOSS OF GOODWILL, OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, DESPITE ANY FAILURE BY STOUT TO REPAIR OR REPLACE THE PRODUCTS. CLIENT HAS ACCEPTED THESE RESTRICTIONS ON ITS ABILITY TO RECOVER DAMAGES (INCLUDING ALL FORMS OF CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES) AS PART OF ITS BARGAIN WITH STOUT. CLIENT ACKNOWLEDGES THAT THE PRICES OF STOUT PRODUCTS WOULD BE MUCH GREATER IF STOUT UNDERTOOK MORE EXTENSIVE LIABILITY.

PRODUCTS

Products include all stainless steel tanks, kettles, and attached brewing equipment (including clamps, piping, and structural steel) and kegs.  Other equipment such as electronic controls, chillers, coolers, heat exchangers, pumps, keg washers, malt mills, augers, and other equipment manufactured by third parties may have warranties provided by their manufacturers, which may differ from STOUT’s warranty.  Wear items, such as rubber gaskets, hoses, thermometers, heating elements are warranted to be free from material defect for a period of ninety (90) days from date of shipment.

TARIFFS

Prices listed on our website, quotes and sales orders include all applicable tariffs, duties, import fees and all similar taxes (“Tariffs”) as of the date of the sales order. In the event any local, state, national or international body imposes any Tariff on goods that you ordered prior to shipment, STOUT may, in its sole discretion, add an additional charge to your sales order to cover such Tariff.

The customer is responsible for paying all Tariffs.  

GOVERNING LAW AND VENUE

These Terms and Conditions and any action related thereto will be governed by the laws of the State of Oregon without regard to its conflict of law provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Use will be the state and federal courts with jurisdiction in Washington County, Oregon, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

These Terms and Conditions may be modified by STOUT at any time. 

Communication Terms and Conditions

Effective: April 20, 2023

Welcome to the at www.lotusbevalliance.com, www.alphabrewops.com,  www.conical-fermenters.com, www.stouttanks.com, www.brewmation.com, www.automatedextractions.com, and www.twinmonkeys.net (the “Sites”), owned and operated by the Malt Group Corporation, Alpha Brewing Operations, Automated Extractions, Brewmation, G.W. Kent, Lotus Beverage Alliance, Stout Tanks and Kettles, and Twin Monkeys Beverage Systems, and their affiliates, subsidiaries and related companies (“Malt Group”, “we”, “us”, “our”). These Terms and Conditions govern your use of and access to the Sites, all related mobile apps, tools, products and services that we may offer from time to time (collectively, the “Services”).

THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU, THE END USER, AND THE MALT GROUP. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING TO USE THE SERVICES AND CREATING AN ACCOUNT. BY USING THE SERVICES, CREATING AN ACCOUNT, AND/OR MAKING AN ONLINE PURCHASE, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE ANY SERVICES. YOUR USE OF THE SERVICES MEANS THAT YOU AGREE TO THE TERMS OF THIS AGREEMENT.

BY ACCESSING OR USING THE SERVICES, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT AND WARRANT THAT YOU ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THE SERVICES IN YOUR JURISDICTION. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER. PLEASE READ THE “ARBITRATION” SECTION BELOW FOR ADDITIONAL INFORMATION.

1. MODIFICATIONS AND UPDATES TO THIS AGREEMENT

We reserve the right, at any time, to modify, alter, and/or update this Agreement, and any such modifications, alterations, or updates will be effective upon our posting of the revised Agreement. We will use reasonable efforts to notify you in the event material changes are made to this Agreement, such as by posting a notice on the Sites or sending you an email. Your continued use of the Services following our posting of any revised Agreement will constitute your acknowledgement of the amended Agreement. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Services. If you do not agree to the revised Agreement, you may not access or use the Services.

1. ELIGIBILITY

The Services are offered and available to natural persons who are 18 years of age or older. IF YOU ARE 16 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE, THEN YOU AGREE TO REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THIS AGREEMENT. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS AGREEMENT ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THIS AGREEMENT FOR THE BENEFIT OF A CHILD 16 OR OVER, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD’S USE OF THE SERVICES, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.

1. PRIVACY

Please review our Privacy Notice in order to learn about our practices with respect to the collection and processing of your information. The Privacy Notice is hereby incorporated by reference into this Agreement.

1. ACCOUNT REGISTRATION AND COMMUNICATION PREFERENCES

Some of our websites may permit you to create an account. By creating an account, you agree to provide accurate, current and complete information about yourself, and to maintain and promptly update as necessary your account information. You are solely responsible for the security of your account and you agree to maintain the security of your account and associated password.

By creating an account, you consent to receive electronic communications from us, which may include notices about your account and other transactional information. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

1. INTELLECTUAL PROPERTY RIGHTS

You acknowledge and agree that we or our licensors own all legal right, title and interest in and to all elements of the Services. The Services, and all of its contents, including without limitation, the Malt Group name and logo and all text, photographs, images, illustrations, graphics, video material, audio material, music, software, tools, logos, titles, names, button icons and the selection and arrangement thereof on the Sites (collectively “Site Content”), are or may be protected by copyright, trademark and other laws of the United States, as well as international conventions and the laws of other countries. The Site Content is owned or controlled by us or by other parties that have provided rights thereto to us.

Except as expressly set forth herein, you may not, and agree that you will not, use, publish, reproduce, display, distribute, or modify the Site Content or any portion thereof, for any purpose or by any means, method, or process. Modification of the materials appearing on the Services or use of such materials for any purpose not expressly set forth herein is a violation of our copyright and other proprietary rights. We reserve all rights in and to the Site Content, other than the limited license granted to you in this Agreement.

1. TRADEMARKS

The Malt Group name and logo and all related names, logos, domains, product and service names, designs and slogans are trademarks of Malt Group or our licensors. You must not use such marks without our prior written permission in each instance. All other names, logos, product and service names, designs and slogans on the Services are the trademarks of their respective owners.

1. LICENSE

Our License to You: You are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, and personal license to access and use the Services and Site Content; provided, however, that such license is subject to the terms of this Agreement and does not include any right to (a) sell, resell or use commercially the Services or Site Content, (b) distribute, publicly perform or publicly display any Site Content, (c) modify or otherwise make any derivative uses of the Services or Site Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the Services or Site Content, except as expressly permitted by us, and (f) use the Services or Site Content other than for their intended purposes.

Your License to Us: If you submit any photographs, videos, ideas, suggestions, comments, ratings, reviews and/or feedback to us about or in connection with the Services, any of our products or services, or any other Site Content (collectively, “UGC”), you hereby grant us a perpetual, non-exclusive, worldwide, royalty-free, irrevocable, sublicenseable license to use and disclose your name, applicable social media account name or handle and UGC for any purpose, including without limitation, as part of the Services, our product and service offerings, and any improvements and modifications to any of the foregoing.  You acknowledge and agree that we shall have no obligation to compensate you for any use of your UGC, nor will we be under any obligation to use any UGC you may submit.

1. THIRD PARTY WEBSITESS AND APPLICATIONS

The Services contain links to third party websites, services, and applications that are not owned, operated or controlled by us. All such links are provided solely as a convenience to you. We do not control, recommend or endorse and are not responsible for these websites or applications or their content, products, services or privacy policies or practices. When you access these third party websites, services, or applications, you leave our Services, and we are not responsible for, and do not control, the content, security, or privacy practices employed by any third party websites, services, or applications. In no event shall we be liable, directly or indirectly, to you or any other person or entity for any loss or damage arising from or occasioned by the creation or use of the third party websites, services, or applications, or the information or material accessed through these third party websites, services, or applications. If you decide to access any other websites or application linked to or from the Services, you do so entirely at your own risk and subject to the terms and conditions of use for such third party websites, services, or applications.

1. ACCEPTABLE USE AND USER CONDUCT

You are solely responsible for your use of and access to the Services. You may not use, or encourage, promote, facilitate or instruct others to use, the Services, or any part thereof, to:

• Provide, submit or upload false, inaccurate or misleading information;
• Impersonate another user, person or entity, or use or attempt to use another user’s account without express written consent from such user and Malt Group;
• Infringe upon, misappropriate or violate any other party’s intellectual property, privacy, publicity, statutory, legal, personal or other rights;
• Collect, track, harvest or otherwise collect information about others, including without limitation email addresses, without proper consent;
• Send, upload, promote, distribute, disseminate, incite or encourage any unlawful, defamatory, disparaging, harassing, insulting, abusive, harmful, discriminatory, threatening, intimidating, malicious, fraudulent, violent, obscene, or otherwise objectionable content;
• Upload, transmit or distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other type of malicious code, or items of a destructive or deceptive nature, that could interfere with, disrupt, affect, damage, harm or impair the functionality or operation of the Services or of any related websites, other websites, or the Internet, or that would restrict or inhibit any other person from using the Services;
• Modify, adapt, translate, copy, reproduce, duplicate, archive, download, publish, distribute, reverse engineer, decompile or disassemble the Services or portion thereof by any means, other than as expressly permitted by this Agreement or as otherwise clearly contemplated by the features and functionalities of the Services;
• Reformat, frame or mirror any portion of the Services;
• Use any robot, spider, Sites search/retrieval application, crawler, scraper, script, browser extension, offline reader or similar data mining, gathering or extraction tools or methods, whether automated, programmed or manual, not authorized by us to access or otherwise use the Services in any way;
• Undertake, engage in, carry out, encourage, or promote any illegal or unauthorized activity that would violate, or assist in violation of, any law, statute, ordinance, or regulation, including, but not limited to, money laundering, terrorist financing, or deceptive or manipulative trading activities; or
• Use the Services for any other unlawful, improper or unethical purposes, or to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances.

If you violate the terms of this Agreement, including without the limitation, the foregoing Acceptable Use standards, we reserve the right, in our sole discretion, to suspend or terminate your account and block your access to the Sites and Services, and take all other measure we deem appropriate in light of your conduct.

1. COPYRIGHT CLAIMS

Malt Group respects the intellectual property rights of all creators.  If you believe that any Site Content violates or infringes upon your copyrights, you may submit a written notice to us in accordance with the Digital Millennium Copyright Act (the “DMCA”) containing the following information:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
2. Identification of the copyrighted work(s) claimed to have been infringed.
3. Identification of the material that is claimed to be infringing, and information reasonably sufficient to permit us to locate the material on the Sites.  Note that including specific URLs in your notice will help us to quickly identify the allegedly infringing material.
4. Information reasonably sufficient to permit us to contact you (the complaining party), such as an address, telephone number, or email address where you (the complaining party) may be contacted.
5. A statement that you (the complaining party) “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.”
6. A statement that the information in the notice is accurate and, under penalty of perjury, that you (the complaining party) are authorized to act on behalf of the copyright owner.

Please send the DMCA notice to our designated Copyright Agent at:

Katten Muchin Rosenman LLP

Attn: Thomas Lamprecht

525 W. Monroe Street

Chicago, IL 60661-3693

Email: Thomas.Lamprecht@katten.com

Please include the following in the subject line of your letter and/or email: Malt Group DMCA Notice.

In response to a valid DMCA notice, Malt Group reserves the right to remove the allegedly infringing content from the Services. 

1. DISCLAIMER

VISITORS TO THE SITES OR SERVICES AGREE THAT THEIR USE OF, AND RELIANCE ON, ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH THE SITES OR SERVICES IS AT THEIR SOLE RISK. THE SITES, THE SERVICES AND ALL SITE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” MALT GROUP MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) ANY WARRANTIES CONCERNING THE ACCURACY, TIMELINESS, OR COMPLETENESS OF THE CONTENT ON THE SITES OR SERVICES; (b) ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FUNCTIONALITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE SITES, SERVICES, OR SITE CONTENT; AND (c) ANY WARRANTIES AS TO THE LAWFULNESS OF YOUR USE OF THE SERVICES. WE DO NOT REPRESENT, WARRANT OR GUARANTEE: (x) THAT THE SERVICES, ANY PORTION OF THE SITES OR SERVICES, OR E-MAILS SENT FROM OR ON BEHALF OF MALT GROUP ARE OR WILL BE FREE FROM VIRUSES, SCRIPTS, WORMS, TROJAN HORSES, OR ANYTHING ELSE CONTAINING DESTRUCTIVE PROPERTIES; (y) THAT ACCESS TO THE SITES OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (z) THE SITES OR SERVICES WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. THE SERVICES ARE VOID WHERE PROHIBITED OR OTHERWISE RESTRICTED BY APPLICABLE LAWS.  WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION CONTAINED ON THE SITES OR SERVICES. WHILE MALT GROUP ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES AND SITE CONTENT SAFE, MALT GROUP CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, SITE CONTENT, OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY IN ANY MANNER.

WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS RELATED TO YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR SUCH AS FORGOTTEN PASSWORDS OR MISTYPED ADDRESSES; (ii) SERVER FAILURE OR DATA LOSS; (iii) UNAUTHORIZED ACCESS TO YOUR ACCOUNT; (iv) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES; OR (v) YOUR INABILITY TO USE THE SERVICES AS A RESULT OF ANY APPLICABLE LAWS.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.  SOME JURISDICTIONS DO NOT PERMIT THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, SO THE FOREGOING EXCLUSIONS MAY NOT APPLY TO YOU.

1. INDEMNIFICATION

By using the Services, you agree to indemnify, defend and hold Malt Group and its past, present and future parent, affiliates and subsidiaries, and each of their respective officers, directors, members, managers, employees, service providers, agents, contractors, successors and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all claims, demands, actions, damages, losses, liabilities, penalties, fines, judgments, settlements, costs and expenses (including without limitation, reasonable attorneys’ fees and expenses, including any incurred in enforcement of this indemnity) (collectively, “Losses”) arising in any way from or in connection with (i) your use, or misuse, of the Sites or Services or any goods and services available or purchased on or through the Sites or Services: (ii) any violation by you of this Agreement, our Privacy Notice or any other policy posted on the Sites applicable to your use of the Sites or the Services; (iii) any Feedback you provide to us; and (iv) any violation of the rights of a third-party.  The Indemnified Parties reserve the right to assume the exclusive defense and control of any matter subject to indemnification hereunder, in which event, you agree to assist and cooperate with us in the defense or settlement of any Losses.

1. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL MALT GROUP, OUR PAST, PRESENT OR FUTURE PARENT, AFFILIATES OR SUBSIDIARIES, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, SERVICE PROVIDERS, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR RELATED TO THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE, THE SITES, SERVICES, ANY SITE CONTENT OR OTHER MATERIALS, OR ANY THIRD PARTY SITESS OR PRODUCTS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF MALT GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OF THE ABOVE CLAIMS OR FOR DISPUTES AGAINST US IS TO DISCONTINUE YOUR USE OF THE SITES AND/OR SERVICES. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT YOUR LIABILITY IN RESPECT OF ANY INDEMNITY GIVEN BY YOU UNDER THIS AGREEMENT.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

1. MODIFICATIONS TO THE SERVICE

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof), or suspend or discontinue any transaction through the Services, at any time and without liability therefor.

1. TERMINATION

Notwithstanding anything contained in this Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.

1. ARBITRATION

With respect to any and all disputes arising out of or in connection with the Services, this Agreement, or the Privacy Notice, you and Malt Group agree to negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. If you and Malt Group do not resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by confidential binding arbitration.

Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. Unless otherwise agreed upon by the parties in writing, the arbitration will be conducted before one arbitrator in New York, New York, and will be governed by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).

To the fullest extent permitted by applicable law, you and Malt Group will abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU AGAINST MALT GROUP MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) the arbitration shall be confidential, and neither you nor Malt Group may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (4) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (5) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

The arbitrator's award shall be binding and may be entered as a judgment in a court of competent jurisdiction. You agree that Malt Group may seek any interim or preliminary relief from a court of competent jurisdiction in New York County, New York, necessary to protect its rights or property pending the completion of arbitration. 

1. GOVERNING LAW

We control and operate the Services from the United States, though we understand that the Sites may be accessed by individuals outside of the United States. We do not represent that the Site Content or other materials on the Services are appropriate or available for use in other locations.  In addition, the Services may contain products or references to products that are not available outside of the United States.  Any such references do not imply that such products will be made available outside the United States.  Persons who choose to access the Services from other locations do so on their own initiative, and are responsible for compliance with all local laws, if and to the extent local laws are applicable.  You may not download or otherwise export or re-export software from this Sites in violation of United States export control laws.

You agree that any dispute arising under or related to this Agreement will be governed by, and construed in accordance with, the laws in effect in the State of New York, without regard to its conflicts of law principles.  Notwithstanding the arbitration provisions above, in the event that we elect to seek injunctive or other equitable relief, or there is a dispute that is otherwise not subject to arbitration, you expressly and irrevocably consent to the exclusive jurisdiction of the state or federal courts, as applicable, located in New York, New York, and to the exercise of personal jurisdiction in such courts in connection with any such dispute.

1. SEVERABILITY

If any provision, or portion thereof, of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision, or portion thereof, shall be severable from the remainder of this Agreement, and all other terms and provisions of this Agreement shall remain in full force and effect.

1. SURVIVAL

All terms and provisions of this Agreement that are intended to survive the expiration or termination of this Agreement and the termination of your Account shall so survive.

1. MISCELLANEOUS

This Agreement is the entire agreement between you and Malt Group with respect to the Sites, Services and Site Content, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Malt Group with respect to those matters. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other in any respect. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Malt Group.  Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision, or of our right to enforce such right or provision. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and is not intended to confer third party beneficiary rights upon any other person or entity.

1. CONTACT US

If you have any questions about the Services or the terms of this Agreement, please send us an email at Support@lotusbevalliance.com.

Text Messaging Terms of Service

The mobile message service (the “Service”) is operated by the Malt Group. Your use of the Service constitutes your agreement to these terms and conditions (“Messaging Terms of Service”). You also accept and agree to be bound by our Privacy Notice, and any other applicable terms and agreements related to your use of our Services. You may opt-out of these communications at any time, and consent to receive marketing text messages is not required to purchase any goods or services.

You agree to receive recurring promotional marketing text (e.g., SMS and MMS) messages from the Malt Group, including, personalized marketing text messages and text messages, to the mobile telephone number you provided when signing up or any other number that you designate. Service-related messages may include updates, alerts, and information (e.g., order updates, product recalls, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders). Consent to receive automated marketing text messages is not a condition of any purchase.

Message Frequency

Message frequency will vary. The Malt Group reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages.

Supported Carriers

Supported carriers may change from time to time, but currently] AT&T, T-Mobile, Verizon Wireless, Sprint, Nextel, Boost, Alltel, US Cellular, and Cellular One, among others.

Support/Help

For HELP reply “HELP” to 503-766-3206 for assistance or to any text message you receive from us or email support@lotusbevalliance.com. Message and data rates will apply and you should check the rates of your mobile carrier. Text messages are distributed via third party mobile network providers and, therefore, we cannot control certain factors relating to message delivery. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. The Malt Group, its service providers and the mobile carriers supported by the program do not claim or guarantee availability or performance of this service, including liability for transmission delays or message failures.

Termination of Text Messaging

The Malt Group reserves the right to modify or discontinue, temporarily or permanently, all or any part of text messages, with or without notice to you. Reply STOP to any text message you receive from us to stop receiving messages.