The entity you are entering into this agreement with is Ninkasi Technologies LLC (“Ninkatek”), P.O. Box 635, West Hyannisport, Massachusetts, 02672-9800. The sites included in this Terms of Service User Agreement include, but are not limited to, www.ninkatek.com, www.AmericanCraftBrands.com; and www.ACBWholesale.com (collectively the “Sites”).
Please be advised that this TOSUA and the incorporated Policies contain provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes ("Agreement to Arbitrate")). Unless you opt out: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
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:
In connection with using or accessing the Services you will not:
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:
When buying an item, you agree to comply with Ninkatek’s Buyer’s Policy and agree that:
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:
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:
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):
Written notification of claimed infringement must be submitted to the following Designated Agent:
Name and Address of Designated Agent:
P.O. Box 635
West Hyannisport, Massachusetts 02672-9800
Email Address of Designated Agent:
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:
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.
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.
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 INC., 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 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.