Ninkatek ACB LLC Terms of Service User Agreement

Ninkatek creates and operates ‘permissioned’ platforms and marketplaces that, among other functions, allows users to list for sale, sell, buy, transport and deliver craft beers, spirits, and wines in a variety of pricing formats and locations as well as collect, record, track, and report all required data for compliance with relevant laws and regulations. In the case of a sale of alcohol, the actual contract for sale (the “Transaction”) is directly between the seller and buyer and Ninkatek does not at any time take possession of the product or in any way subjugate the responsibilities, rights, or obligations of the license holders who are the parties to the Transaction. The Sites are not a traditional auctioneers or equivalents to consumer sales sites. Ninkatek Users (“Users) shall be defined as any person or entity that is legally authorized and has an active license to purchase, and/or sell, alcohol in the jurisdiction of the Transaction. Users will be required to provide proof of such license, starting with the License Holder (as defined below) or affiliation to such license (as set out in the License Holder’s Policy), prior to becoming a User and will be restricted by that license (duration; types of alcohol; venue; etc) and any further restrictions set out by the License Holder or Ninkatek after becoming a User. Ninkatek at any time with or without notice to the User shall revoke a user’s right to sell and/or buy if a license expires without renewal or any restrictions, sanctions or any other relevant court or licensing authority shall indicate that the user’s license shall be temporarily or permanently suspended.

While we may provide listing, shipping, licensing, regulatory and other guidance in our Services, such guidance is solely informational and should not be relied upon for decision-making without independent verification and validation. Also, while we may help facilitate the resolution of disputes through various programs, Ninkatek has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction.

In connection with using or accessing the Services you will:

• only use Ninkatek’s Sites for the purposes they were intended as set out in our Acceptable Use Policy;
• authorize and make payments for any applicable subscriptions fee and listing fees as and when those fees are due;
• establish and actively maintain a list of users associated with your business (“Authorized Users”) and take full responsibility for their actions on Ninkatek’s Sites including purchases, listing for sale, compliance with this TOSUA, and any and all applicable laws, rules, and regulations related to your license to buy, sell, handle, or transport alcohol products;
• ensure that those users authorized by you keep their user identifications (IDs) and passwords to Ninkatek’s Sites strictly confidential and not share any such information with an unauthorized person;
• notify Ninkatek of any suspicious or unauthorized use by a user who you authorized for use on the Ninkatek sites;
• ensure that your data on the Ninkatek Sites complies with all laws and does not infringe on another person or entities’ rights, including but not limited to, any intellectual property rights, rights to privacy, or rights of publicity.

In connection with using or accessing the Services you will not:

• post, list or upload content or items in inappropriate categories or areas on our sites;
• breach or circumvent any laws, third-party distribution rights or other contractual obligations that you agreed to outside of our Sites;
• breach or circumvent any laws, our systems, policies, or determinations of your account status;
• use our Services if you are not able to form legally binding contracts, or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
• fail to pay for items purchased by you, unless you have a valid reason as set out in Ninkatek’s Buyer’s Policy. For example, in the case of an auction, your auction-based bid is below the clearing price of that particular auction at its close and you have notified us of your withdrawal from the auction at that price within the required time. In the case of a fixed price sale, the seller has materially changed the item's description after you purchased it, or a clear typographical error is made (see our Buyer’s Policy);
• fail to deliver items sold by you, unless you have a valid reason as set out in an Ninkatek’s Sellers policy, for example and subject to federal, state, and local law and regulation, the buyer fails to comply with the posted terms in your listing (including mistreatment of your products), persistently rejects products upon delivery, or fails to pay for product as contractually and / or statutorily required to do so;
• manipulate the price of any item or interfere with any other user's listings;
• post false, inaccurate, misleading, defamatory, or libelous content;
• take any action that may undermine any feedback or ratings systems (see about our Feedback policies);
• transfer your Ninkatek account (including Feedback) and user ID to another party without our consent;
• distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
• distribute viruses or any other technologies that may harm Ninkatek, or the interests or property of users;
• use any robot, spider, scraper, or other automated means to access our Services for any purpose;
• bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
• export or re-export any Ninkatek application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
• reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to Ninkatek, or that comes from the Services and belongs to another Ninkatek User or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of Ninkatek and/or any other party holding the right to license such use;
• commercialize any Ninkatek application or any information or software associated with such application;
• harvest or otherwise collect information about users without their consent; or
• circumvent any technical measures we use to provide the Services.

If we believe you are abusing Ninkatek in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services. We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.

When a buyer, seller, distributor, shipper, or deliverer issue arises, we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for the effected parties and the in the best interest of the broader user community.

The fees we charge for using our Services are listed on the relevant Fee Structure page. We may change our seller fees from time to time by posting the changes on the Ninkatek site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees. You must have a payment method on file when selling on Ninkatek and pay all fees and applicable taxes associated with our Services by the payment due date.

When listing an item, you agree to comply with Ninkatek’s Seller’s Policy, including but not limited to, being responsible for the accuracy and content of the listing and item offered.

Our goal is to provide a level playing field and honor all regulatory and contractual obligations of users while creating a one-stop-shop for buyers of all forms of licensed alcohol products. As a result, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:

• regulatory obligations;
• prior territory contractual obligations;
• goals and objectives of the Sites;
• buyer's location, search query, browsing site, and history

When buying an item, you agree to comply with Ninkatek’s Buyer’s Policy and agree that:

• You are responsible for reading the full item listing before making a bid or commitment to buy;
• You enter into a legally binding contract to purchase an item when you commit to buy an item or if you have the winning bid (or your bid is otherwise accepted);
• We are not party to any transaction and do not transfer legal ownership of items from the seller to the buyer.

As a licensed and / or authorized Shipper on a Ninkatek Site, you agree to comply with Ninkatek’s Shipper’s for Self-Distributors Policy including, but not limited to, the following:

• The terms of the Service Level Agreement (SLA) ‘smart contract’ that governs and sets expectations regarding the care, handling and delivery of products on behalf of the Seller and which is incorporated into the Shipper’s Policy by reference;
• Having and maintaining the relevant licenses to operate the equipment necessary to safely and professionally meet the SLA;
• Returning the product to the Seller when rejected by the buyer;
• Having an approved and traceable methodology to bill and collect your fees from Sellers and Buyers, as appropriate for the service provided.

As an authorized Service Provider receiving notifications of service opportunities via Ninkatek’s Sites, you agree to comply with Ninkatek’s Service Provider’s Policy including, but not limited to, the following:

• The terms of the Service Level Agreement (SLA) you provide and have on file with Ninkatek as part of your approval as an authorized Service Provider which includes, at a minimum, clear pricing, proof of insurance, a guaranteed service area, and warranted response times;
• Giving Ninkatek 1 days’ notice of a change in the SLA so we can update our records and notify the relevant user community;
• Having and maintaining any relevant licenses to operate the equipment necessary to safely and professionally meet the SLA;
• Having an approved and traceable methodology to bill and collect your fees from Sellers and Buyers, as appropriate for the service provided.

When providing us with content or causing content to be posted using our Services, you grant us a non-exclusive, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark, and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.

You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with this Terms of Service User Agreement.

If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
5. 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
6. 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.

Written notification of claimed infringement must be submitted to the following Designated Agent:

Name and Address of Designated Agent:

Ninkatek
P.O. Box 635
West Hyannisport, Massachusetts 02672-9800

Email Address of Designated Agent:

This email address is being protected from spambots. You need JavaScript enabled to view it.

Ninkatek may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) notify you of an event; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Ninkatek may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications.

Ninkatek may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Ninkatek or its agents for quality control and training purposes or for its own protection.

If Ninkatek provides you with information about another user, you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.

We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in Ninkatek applications may not occur in real time. Such functionality is subject to delays beyond Ninkatek control.

You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:

• your use of or your inability to use our Services;
• pricing, shipping, format, or other guidance provided by Ninkatek;
• delays or disruptions in our Services;
• viruses or other malicious software obtained by accessing or linking to our Services;
• glitches, bugs, errors, or inaccuracies of any kind in our Services; 
• damage to your hardware device from the use of any Ninkatek Service;
• the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
• a suspension or other action taken with respect to your account or breach of the Using Ninkatek Section above;
• the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or 
• your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this Terms of Service User Agreement (TOSUA) or our policies.
  

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $100.

If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, 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.

You agree to indemnify, defend and hold Ninkatek, its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, Operators, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees), arising in any way out of or in connection with (a) your use of the Services, (b) your breach of violation this Agreement or (c) your User Materials. Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request including without limitation Section.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND NINKATEK HAVE AGAINST EACH OTHER ARE RESOLVED.

You and Ninkatek agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Ninkatek User Agreement, your use of or access to the Services, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.

Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Massachusetts, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and Ninkatek, except as otherwise stated in the User Agreement.

Agreement to Arbitrate

You and Ninkatek each agree that any and all disputes or claims that have arisen or may arise between you and Ninkatek relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to Ninkatek Services, or any products or services sold, offered, or purchased through Ninkatek Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND NINKATEK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND NINKATEK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.

The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable). The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. 

Costs of Arbitration

Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $1,000 or less, at your request, Ninkatek will pay all filing, administration, and arbitrator fees associated with the arbitration.

Opt-Out Procedure

IF YOU ARE A NEW NINKATEK USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO NINKATEK ACB LLC, ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, P.O. BOX 635, WEST HYANNISPORT, MASSACHUSETTS, 02672-9800.

For your convenience, we are providing an Opt-Out Notice form you must complete and mail to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Ninkatek account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.

Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Ninkatek must be resolved exclusively by a state or federal court located in Boston, Massachusetts. You and Ninkatek agree to submit to the personal jurisdiction of the courts located within Suffolk County, Massachusetts for the purpose of litigating all such claims or disputes.

“License Holder” is defined as the person, persons, or entity (of whatever kind) that has been issued a license to produce, sell, transport, distribute, or sell or serve to consumers by the U.S. federal government and / or a U.S state government or their respective authorized regulatory bodies. 

Except as otherwise provided in this Agreement, if any provision of this TOSUA is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.  In our sole discretion, we may assign this TOSUA, by providing notice of such assignment in accordance with the Notices Section.

Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this TOSUA.

We may amend this Terms of Service User Agreement (TOSUA) at any time by posting the amended terms on www.Ninkatek.com. Our right to amend the TOSUA includes the right to modify, add to, or remove terms in the TOSUA. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the Ninkatek Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the TOSUA through an electronic click-through. This TOSUA may not otherwise be amended except through mutual agreement by you and an Ninkatek representative who intends to amend this TOSUA and is duly authorized to agree to such an amendment.

The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the Ninkatek site.

If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this TOSUA. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this TOSUA.

The TOSUA, the User Privacy Policy, and all polices set forth the entire understanding and agreement between you and Ninkatek and supersede all prior understandings and agreements of the parties.

The following Sections survive any termination of this TOSUA: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by writing them at 400 R Street, Sacramento, CA 95814, or calling (800) 952-5210.